The New York Times
Politics
How the Mueller Investigation Could Play Out for Trump
By MICHAEL S. SCHMIDT, CHARLIE SAVAGE, ALICIA PARLAPIANO, ANJALI SINGHVI and TROY GRIGGS MAY 23, 2018
Of all the questions hanging over the special counsel investigation, one stands out: How will President Trump fare in the end?
An indictment is one possibility that has grown increasingly unlikely. The office of the special counsel, Robert S. Mueller III, has told the president's lawyers that it plans to abide by the Justice Department’s view that sitting presidents cannot be indicted no matter what the evidence shows. Still, if Mr. Mueller finds wrongdoing, Mr. Trump could be indicted after he leaves office.
But for now, there are several other potential outcomes while Mr. Trump is president. The New York Times spoke to defense lawyers, legal experts and former Justice Department officials to determine how the Mueller investigation may play out for Mr. Trump. The Times explored the likeliest outcomes in this little-tested area of the law; some have nearly endless permutations that are not covered here.
Robert S. Mueller III
Special Counsel
Finds no wrongdoing by the president. He must send Rod J. Rosenstein, the deputy attorney general overseeing the investigation, a confidential report explaining his decision.
Finds that Mr. Trump broke the law. He can proceed in a few ways…
Mr. Rosenstein would not have to send the report to Congress, but he would most likely face great pressure to do so.
‘Nixon Option’
Ask a grand jury to deem Mr. Trump a co-conspirator and send a report to Congress.
MoST Aggressive
Indict the president.
LeSS Aggressive
Leave the decision up to Congress, which has the power to impeach.
THE LESS AGGRESSIVE OPTION
ROBERT S. MUELLER III
Special Counsel
Mr. Mueller could write a lengthy report in the hopes it gets to Congress. If the special counsel concludes that Mr. Trump has committed wrongdoing that Congress should know about, he can write a report. But under the law, Mr. Mueller cannot give it directly to Congress. Instead, he has to give it to the Justice Department official overseeing the investigation — Mr. Rosenstein.
Rod J. Rosenstein
Deputy Attorney General
Mr. Rosenstein could send the report to Congress. There would most likely be intense political pressure to do so.
Mr. Rosenstein could refuse to send the report to Congress. If he holds onto it, lawmakers could try two ways to get the information…
One: They could subpoena the document from Mr. Rosenstein.
Two: They could subpoena Mr. Mueller to testify before Congress.
Congress
If Congress gets the report, lawmakers could ignore it …
…or lawmakers could use the information to attempt impeachment.
TRUMP REMAINS
IN OFFICE
IMPEACHMENT
PROCEEDINGS
The notion that Mr. Mueller will write an expansive report of his findings has gained a foothold and harks back to the book-length report that Kenneth Starr, the independent counsel who investigated President Bill Clinton, submitted directly to Congress, along with supporting evidence he deemed relevant.
But the law has changed since Mr. Starr’s investigation. Mr. Mueller is required instead to submit a confidential report to Mr. Rosenstein explaining his decisions to prosecute or not. Mr. Rosenstein does not have to turn that report over to Congress; he only has to notify lawmakers that the investigation has ended.
THE ‘NIXON OPTION’
ROBERT S. MUELLER III
Special Counsel
Mr. Mueller could take pages from the playbook of Leon Jaworski, the Watergate prosecutor. If Mr. Mueller finds evidence of wrongdoing by Mr. Trump, he could try to use the grand-jury process to make the information public or disclose it to Congress. Mr. Mueller could name Mr. Trump as an unindicted co-conspirator in charges that are filed against others.
Like Mr. Jaworski, Mr. Mueller could also ask the grand jury to send a report about Mr. Trump’s actions, and supporting evidence, to the House Judiciary Committee. But Mr. Mueller would have to get Mr. Rosenstein’s permission for either or both steps.
Rod J. Rosenstein
Deputy Attorney General
If Mr. Rosenstein approves the approach, Mr. Mueller could ask a grand jury to deem Mr. Trump an unindicted co-conspirator, and to send a report and evidence to the House Judiciary Committee. A judge would most likely have to approve such steps first.
If Mr. Rosenstein rejects the approach, he would have to tell Congress why he decided against it.
Congress
Congress could ignore the information …
... or use it to begin impeachment proceedings.
IMPEACHMENT
PROCEEDINGS
TRUMP REMAINS
IN OFFICE
This approach has precedent. In March 1974, a grand jury indicted seven associates of President Richard M. Nixon in connection with the cover-up of the Watergate burglary. At Mr. Jaworski’s request, the grand jury also secretly authorized naming Nixon as an unindicted co-conspirator, a fact that leaked months later.
Separately, the grand jury approved a report that provided a road map to the facts it had uncovered tying Nixon to the cover-up and sent it, along with a suitcase of supporting evidence, to the House Judiciary Committee, which was already considering impeachment. A federal judge approved that step.
THE MOST AGGRESSIVE OPTION
ROBERT S. MUELLER III
Special Counsel
Mr. Mueller could seek the president’s indictment. If he believes he has enough evidence to charge Mr. Trump with a crime in federal court, the special counsel could ask a grand jury to indict him. But he would have to get permission from Mr. Rosenstein.
Rod J. Rosenstein
Deputy Attorney General
He could approve the indictment.
INDICTED
Many complications could ensue. For example, there could be a question of whether to defer any trial until Mr. Trump leaves office.
Mr. Trump might fire Mr. Rosenstein and install a new acting attorney general who orders the indictment withdrawn.
Mr. Trump’s lawyers could challenge the indictment’s constitutionality, or the president could say he was pardoning himself, most likely prompting a Supreme Court fight.
SUPREME COURT
Or, he could reject the indictment. If Mr. Rosenstein rebuffs an attempt to indict Mr. Trump, he would be required under law to send a report to Congress saying so.
Some experts have speculated that Mr. Mueller may ask Mr. Rosenstein for permission to indict Mr. Trump just to make sure that a report is sent to Congress saying he found evidence that the president committed a crime.
Congress
Congress could ignore the notification…
… or it could use the information to try to impeach Mr. Trump.
TRUMP REMAINS
IN OFFICE
IMPEACHMENT
PROCEEDINGS
Complicating matters, the Justice Department has long taken the position that the Constitution does not permit indicting or prosecuting presidents who are in office. Other scholars disagree, arguing it would be constitutional to indict a president so long as any trial is delayed until after he or she has left office. Mr. Mueller’s team has told the president's lawyers that it plans to abide by the Justice Department’s view.
THE IMPEACHMENT PROCESS
The Constitution says that a president can be removed for “treason, bribery or other high crimes and misdemeanors,” which members of Congress can essentially define themselves.
The process would begin with the House Judiciary Committee hearings, followed by a panel vote to move articles of impeachment to the House floor. How this is handled will almost certainly depend on whether Democrats or Republicans are controlling Congress in January, after November’s midterm elections.
House
Impeachment vote succeeds. A majority of House members vote to impeach.
Impeachment vote fails. Less than a majority of the House votes to impeach.
IMPEACHED
TRUMP REMAINS
IN OFFICE
(But the House could revisit the question after the midterm elections if control of the chamber shifts to Democrats.)
SENATE
The articles of impeachment would move to the Senate, which would hold a trial.
• The chief justice of the United States would oversee the case.
• House members would be the prosecutors, and senators would serve as the jury.
• The president’s lawyers would represent him.
After the trial, the Senate would hold a vote to convict the president.
Two-thirds of members present do not vote to convict.
Two-thirds of members present vote to convict.
TRUMP REMAINS
IN OFFICE
REMOVED
FROM OFFICE
If the Senate votes to convict the president, he would be removed from office, and the vice president would ascend to the presidency. If the process failed at any step, Mr. Trump would remain in office.
Only two presidents, Andrew Johnson in 1868 and Mr. Clinton in 1998, have been impeached by the House; in 1974, Nixon resigned to avoid being impeached. No president has been removed from office by the Senate through the impeachment process.
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