During my 25 years as a federal prosecutor at the U.S. Department of Justice, I indicted a lot of cases, including sprawling complex conspiracies that I knew would receive a lot of media attention. Many times, I first indicted smaller portions of the case before charging what would be the final indictment that I ended up taking to trial. In fact, I would do everything I could to wait until the end of the investigation to charge the head honchos of the conspiracy. I would add flesh to a skeletal indictment by charging the lower or mid-ranking members of the conspiracy in a way that revealed the gist of the criminal activity but did not tip my hand as to what was coming. I think Special Counsel Robert Mueller is following the federal prosecutor’s playbook and doing the same thing.
There are two primary reasons federal prosecutors wait until the end to charge the most culpable members of a criminal conspiracy. First, you want the most evidence against the biggest fish. By charging mid and lower ranking people involved in a criminal conspiracy, you have the opportunity to “flip” them and get them to cooperate. They can provide evidence against the people they were working with who are higher up the criminal food chain. This allows a prosecutor to collect evidence he would not have had if he charged everyone in the first indictment.
Second, once you indict the biggest players, all hell breaks loose and large amounts of your time are spent playing defense while you go through the grueling process of preparing for a trial date that is barreling down on you faster than you would like. In big cases, there are countless motions filed by the defendants. Motions for bail, motions for discovery, motions to suppress evidence, motions for a change of venue, motions to dismiss. Particularly in high-profile cases, you want your ducks lined up in a row before you charge the main players.
Over the last week, I’ve heard a lot of media commentators saying that Mueller must not have enough evidence to charge a conspiracy between Russians and members of the Trump campaign. They often point to the fact that 13 Russians have been indicted on conspiracy charges and not a single member of the Trump campaign was included as a defendant in that indictment. Trump supporters, and the talent at Fox News, should not yet be breathing a sigh of relief.
Here is what I think is happening. I think Mueller will soon charge Russians with the hacking of the DNC emails. Reports in the last several days hint that the DNC hacking is now in Mueller’s sights. I predict that if those charges come soon, they will be primarily against Russians and not high-ranking members of the Trump campaign. But, this should offer little solace to Trump, his former campaign staff, and his supporters. Remember, none of the 13 Russians charged in the February 16th indictment are in U.S. custody. If only Russians are initially charged in an indictment relating to the DNC hacking, it is likely that none of those defendants will be in U.S. custody. There will be no bail hearings, no motions to suppress, no motions to dismiss, no trial timetable bearing down on Mueller because no defendants are in this country being prosecuted. Indicting Russians will not serve to distract Mueller from his larger investigation into whether members of the Trump campaign assisted Russians in their interference with the election.
Mueller is a seasoned prosecutor. He knows that, in an investigation as politically charged as this, public opinion is going to have an effect on the success of his prosecutions, if only because the potential jury pools will contain both democrats and republicans. Indicting a bunch of foreigners for their efforts to steal from an American campaign and for their efforts to undermine American democracy is not going to prompt a lot of public outrage against Mueller and his investigation. Indicting members of the Trump campaign will cause Paul Ryan, Mitch McConnell, Sean Hannity, and 35 percent of the nation to burst a collective vein. That’s not something Mueller is going to do until he is as ready as he can be.
Mueller is brilliantly letting the public and commentators chew the flavor out of the Russian indictment from a few weeks ago. I think he will do the same when he indicts a group of Russians with hacking the DNC emails. Once we have come to accept the factually supported premise that there is sufficient evidence to charge Russians with corruptly attempting to influence an American election, that is when Mueller will drop his other shoe.
At that point, I predict Mueller will turn to the Americans who participated in the efforts to corruptly influence the 2016 presidential election. Mueller will use the framework of the indictments he’s already charged and file superseding indictments charging Americans, including members of the Trump campaign, with participating in a conspiracy to illegally influence the election. People should not delude themselves into believing that no current charges against members of the Trump campaign mean there will never be any. In fact, based on the information that has been made available to the public, there appears to be ample evidence to bring charges against members of the Trump campaign. Mueller is just following the prosecutor’s playbook and saving the best for last.
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