Sunday, April 22, 2018

How Mueller Can Protect the Investigation

I just read this Article in Political Magazine by Corey Brettschneider, a Professor of Political Science at Brown University and a Visiting Professor of Law at Fordham Law School.

President Trump claims he can fire Mueller directly, many Legal Scholars disagree. They contend that a Special Counsel can only be subject to Firing for a valid Legal reason by the Attorney General, and since Jeff Sessions has recused himself from the investigation, Mueller’s fate would fall to Deputy Attorney General Rod Rosenstein. But even on this understanding, Trump might pressure Rosenstein into sacking Mueller by threatening to fire Rosenstein himself. Or he might simply replace Rosenstein with a more compliant Supervising Attorney. Or fire the Attorney General and replace him with someone who will fire Rosenstein. If Mueller is removed and his Investigation thwarted, the Public might never learn what misconduct, if any, was uncovered by the Special Counsel’s probe.

But Mueller has a powerful Tool at his Disposal: The “Sealed” or Secret Indictment. If Mueller indeed determines that he has a strong Case against Trump, a Secret Indictment returned by a Grand Jury will help Protect the Integrity of his Investigation even if he is Fired, while also avoiding the risk of provoking Trump to try to further impede the Probe.

Sealed Indictments are routinely employed by Federal Prosecutors in Sensitive Investigations, particularly when a Public Indictment might have a negative effect on an ongoing Investigation. To carry out this Strategy, Mueller would Request that the already empaneled Grand Jury, the one considering matters related to Russian Interference in the Election, issue Criminal Charges against Trump himself. If the Grand Jury were to find Probable Cause for the Charges to proceed, whatever they may be, a Magistrate Judge would then decide whether the Indictment could remain Secret. If the Judge were to determine that it can, the Charges would then remain hidden from Public view until the Criminal Defendant is taken into Custody or released on Bail.

If Trump were to fire Mueller, an already filed Sealed Indictment would outlast Mueller’s tenure. A Sealed Indictment can only be dismissed by a Judge, meaning Trump cannot rid himself of a Legal Headache simply by Terminating the Special Counsel. A Sealed Indictment would also ensure that the Statute of Limitations for Crimes Trump might be Charged with will not Expire. This leaves open the possibility of Trump being tried in the Future.

It will take a Savvy Prosecutor to give meaning to the Principle that No One, Not Even a President, is Above the Law. A Sealed Indictment is one Strong way to help in that pursuit.

to read the Article.

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