Why My Post Predicting the Mueller End Game Won’t Predict Anything

The DOJ beat reporters are on tenterhooks this week, having been led to believe that The Mueller Report will be delivered today, tomorrow, or soon thereafter. That has intensified the already fever pitch around what will happen next.

Given that there is great confidence the conclusion is imminent, here’s why such speculation is misplaced.

We have no idea, and there are many possible options.

Those options include:

  1. A request for a conspiracy indictment naming Trump as a defendant, which would be denied, therefore triggering a report of that denial to the Judiciary Committees (but which would also presumably result in an indictment of others).
  2. An overarching conspiracy indictment including Don Jr and other players, with Trump named as an unindicted co-conspirator.
  3. A Road Map akin to the Watergate one, sharing grand jury material with the House Judiciary Committee; this would be a strong possibility in case of option 2.
  4. No further indictment, but a report showing a great deal of evidence a conspiracy took place, with The Report explaining why (including Presidential prerogative on foreign policy) it can’t be indicted, with or without an accompanying HJC Road Map.
  5. Some kind of report submitted as a counterintelligence report, in addition to indictments (a possibility some have floated but which I believe to utterly misunderstand the nature of Mueller’s task).
  6. The Report showing much ado about nothing.

I happen to think there’s a great deal of evidence a quid pro quo conspiracy took place, but certainly entertain the possibility that Mueller thinks he wouldn’t have an 85% chance of conviction, which DOJ would likely require before he indicted it. But even if I’m right, it still leaves open most of these options.

And the aftermath of every single one of these options is contingent. Meaning it is way premature to get into debates about what William Barr will include in his report and whether Trump can quash the report by invoking privilege until we know whether the The Report is what the regulations require them to be — with the really important details in either an indictment and/or Road Map, or in fact something more comprehensive.

Which is why I think, given the promise that Mueller’s end game is imminent, doing anything but admitting that we don’t know is a waste of air.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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86 replies
  1. Rick Ryan says:

    Could you (or someone) explain a little more how the mechanics of the “Mueller Report” and probe wrap-up will work, mechanically?

    I understand it’s somewhat contingent on the conclusions drawn (e.g., the report to the Judiciary Committees in the event of a denied indictment), but as I understand it, there will certainly be a report submitted to the (acting?) AG about indictment decisions, i.e. the one form of the “Report” that is guaranteed to happen (barring a mass firing or somesuch… pardon the pun). So, 1) does that report get submitted to Barr or Rosenstein (or both, and/or someone else)? And 2), in the event that there is a last round of indictments to be made (let’s say they don’t include a direct indictment of the President, since that seems to be a unique scenario), would those indictments be made before the submission of this report, or simultaneous with it (or after it…)?

  2. Fran of the North says:

    Some of the commentary I’ve seen elsewhere attribute the rambling tweet streams addressing foes both living and dead, and the Op-Ed from Pere Kush as acknowledgement that the preliminary reports have been made and are being circulated.

    But I’d agree, anyone who thinks they know what is coming and when is probably making a WAG.

  3. sharl says:

    I’ve been curious about this 85% thing:

    …85% chance of conviction, which DOJ would likely require before he indicted it.

    I’ve seen this a few times now, and I’m wondering the mechanics/protocol for doing a calculation like this. It seems like so much from-the-gut judgment would be involved, not just of what is charged, but quantity and quality of the evidence, credibility of witnesses, the judge’s temperament (both over years of service, and on any given day), etc.

    If anyone has a good explanation for a non-lawyer like me, I’d be grateful for a link or two. I did a cursory search of this site and came up with nothing, but like I said, it was a cursory search. So if Marcy has done any kind of explanation on this, I definitely missed it.

    • Germane says:

      I was wondering the same thing. The only way “85%” makes sense to me is that it has to do with a determination they could secure convictions based on a standard of “beyond a reasonable doubt”, as opposed to a “preponderance of the evidence” (more than 50%) standard, or a “clear and convincing evidence” (somewhere in between) standard. But perhaps it makes sense some other way.

    • Jockobadger says:

      Sharl/Germane – I asked pretty much this exact question here on EW on March 14 and received this reply from Maestro, who I believe IAL. I asked if there was some sort of methodology to the 85% e.g. something learned in law school? Here is his/her kindly reply:

      “There’s no methodology or formula. It’s subjective assessment and reasonable minds can differ.
      Marcy says 85% because DOJ doesn’t bring cases unless it thinks it can prove what it needs to beyond a reasonable doubt, which is a high bar to meet. This is even more true in the political charged context we are dealing with here, where DOJ will want to be even more certain than they otherwise would be.”

      A truly monumental decision – I hope that Robert Mueller has a fistful of aces.

      • BobCon says:

        Thanks. Another thing that is a mystery for me is how, exactly, a prosecutor’s recommendations are reviewed up the food chain, and what opportunities higher ups have to push back or deny the decisions of a prosecutor.

        Reporting on the Acosta-Epstein story is pretty vague from what I’ve seen, on how much authority Acosta had to determine Epstein’s deal. I can’t tell how much of that vagueness is the result of reporters not asking questions, and how much is because the process is shielded.

        Obvously Mueller’s work is under much greater scrutiny than what Acosta saw at the time. I’m not sure, though, whether we’ll get a better description of what the DOJ process is.

      • sharl says:

        Thanks much! I figured the answer would be something like that, but figured I’d ask, in case I was missing something.

      • Prometheus says:

        All those Manafort ipods, Stone’s phones, Cohen’s taped calls, Flynn and Gate’s cooperation, and Wahoo knows what other hard evidence…just a guess, but Mueller must have plenty of aces up his sleeve, and can nail the rest of the guilty to the wall.

        Politically, tho, is another matter. I really wouldnt mind if Trump isnt impeached, because Im hoping all the criminal investigations by SDNY and NYS AG into his shady business practices, organization etc, may end up putting him and his progeny behind bars or leaving him penniless, living off his social security check, in a one bedroom flat in Elmhurst, Queens.

        I can dream a little, now, can’t I?

        • oldoilfieldhand says:

          If the Presindebt became rich by inflating his expenses, falsifying his income to reduce his taxes, and refusing to pay his bills, why would any sentient being think he paid self-employment Social Security taxes on his income/profit?
          He’s old enough to be collecting Social Security, is he?

    • Drew says:

      Since humans, thinking off the tops of heads, out of guts or intuitively are notoriously bad with statistics–including even the best of attorneys–it would appear to me that that 85 percent number refers to a sureness for the prosecutors that would look to us amateurs like an open-and-shut, water-tight or 100% chance of conviction. In other words, all the elements of all the charges brought would be attested by more than one reliable source that would be admitted at the trial, etc. Thus not requiring any good-luck or favorable breaks in sympathetic judges or jurors, or assuming the opposing counsel to be in any way weak. The professionals, however, know that a defense can and will be mounted, that surprises occur with judges, jurors, witnesses or evidence and that their might even be unanticipated approaches from opposing counsel.

      In other words, 85% is a realistic assessment of the chances with a very strong case. In most cases, I would venture that the defense attorneys would push very hard for their client to negotiate a plea if the chances of a good result were much less than 10%.

      Of course, once the prosecution has commenced the judgement of whether to keep going wouldn’t rely on the probability of conviction remaining above 85%-bad breaks with rulings on evidence for instance, might lower the probability of conviction substantially, but still leave the possibility for conviction alive.

    • vicki greenberg says:

      The less than 85% could also stem from information that can’t come forward just yet because this investigation opened up a whole can of corruption of which Trump Russia “collusion” is just the tip of the iceberg.
      There may be evidence that clearly spells out someone in the campaign’s involvement but it may be an e-mail where a person being looked at for other crimes was cc’d or a dinner where two witnesses will testify something happened but it was at a location that is being surveilled for another case. If any of this is in pursuit of a bigger or more evil fish Mueller may have to close this investigation without being able to include everything he discovered.
      Of course I freely admit I have no clue. Speculation is just another unhealthy outlet for my obsession with this administration.

    • Stephen says:

      Not sure of the origin of the 85% standard, but it clearly refers to the estimated odds that a prosecution would result in a conviction. After all, prosecutors are evaluated (in part) based on their conviction rate. Supposedly state prosecutors average 85% in felony cases; federal prosecutors, 90%. Rates are higher for misdemeanors, mainly because 90% plead guilty with no trial to get it over with. So if you’re a prosecutor, it doesn’t make sense to pursue cases where your odds are much lower.

      The “beyond a reasonable doubt” standard is something else entirely. Since, under our system (thank you Britain), a person is presumed innocent unless proven guilty, the burden of proof falls on the prosecution. There is no official statistical definition of “reasonable doubt,” but many authorities have agreed for some time that 95% is a pretty good threshold. In other words, they suggest a standard similar to that used in the social and behavioral sciences: less than a 5% probability that the hypothesis of guilt is untrue. One could wish that this was explained (very clearly!) to jurors, but it isn’t.

      I hope these articles are of some small help:

      https://kelley.iu.edu/riharbau/RePEc/iuk/wpaper/bepp2008-16-rasmusen-raghav-ramseyer.pdf

      https://watermark .silverchair .com /mgm010.pdf [This link came with a time-sensitive token which has expired. Could you please offer a citation of this piece without a link so community members can search for it on their own? Thank you. /~Rayne]

      • Bill Smith says:

        Beyond reasonable doubt is 95%? That means we wrongly convict 5%?

        Been a juror on capital case. The reasonable doubt explanation from the judge was much higher than 95% but lower than “mathematical certainty”..

        • Stephen says:

          There is no such thing as mathematical certainty in the real world.

          Expecting a p<.05 standard is a common consensus, but some (like you) would like to set a higher one. Note that it doesn't mean that 5% of convictions will be in error, only that no more than 5% will be. And frankly, I think that's pretty close to the truth on the ground.

          If you set a higher standard for conviction, of course, you will also set a more lenient standard for acquitting those who are guilty. It's a trade-off, can't have it both ways.

  4. Areader2019 says:

    Agree….it is possible that Mueller’s end game is imminent.

    But we don’t know what cards he is holding, and we don’t know what he wants to do with them. The people pretending to know what he will do next are the ones who know the least.

    • e.a.f. says:

      perhaps Mueller is simply making Trump and his wait. At some level it would be fun. O.K. Mueller isn’t that unprofessional, its just what I’d do. Let Trump wait and twist in the wind for awhile (oh, right I was going to turn over a new leaf and be a better person. Better go back and read about the GND)

  5. pseudonymous in nc says:

    I’m more interested in what’s keeping Dreeben and Jed busy, given their “press of work” filing. An additional anti-cert filing for Mystery Appellant at SCOTUS? That would be strange given Francisco’s filing. Miller? Concord-related shit? Maybe it’s prosaic and just related to their non-SCO work, but there’s not a huge amount on the public docket right now at the point where you’d need heavy artillery on the appellant side.

    • Tech Support says:

      The reply stream following the kpolantz tweet included one commenter who said that the Mystery Appellant hearing before SCOTUS is due to happen on 3/25, and that Dreeben is going to be the person representing SCO in that hearing.

      The 25th is a Monday, and the unopposed motion to extend the deadline asked for an extension until 4/1, which is the following Monday.

      • pseudonymous in nc says:

        Huh. They haven’t granted cert yet, so I don’t think that’s right. (and it’s not on the SCOTUS hearing list for that day.)

        There’s a March 25 deadline to respond to Concord’s request for a bill of particulars, which might require some appellant shovel-work, but that’s already been partially handed off to Main Justice.

  6. BobCon says:

    I’m curious whether SDNY (and other units) will coordinate anything with Mueller.

    I can see the possibility that indictments in other areas would be kept in a holding pattern until he decides he is ready to move on to the next step, although I also realize that there may be completely separate tracks.

    I’m also very interested in knowing if there are more indictments of Russians beyond the Guccifer 2.0 and Concord stuff. I think to a large extent the public narrative will depend on whether or not Mueller’s team does more in this area.

    • viget says:

      I as well would like to know about more Russian indictments. For instance, we have heard much about the GRU’s role with Fancy Bear and the DNC/DCCC/WADA/Westinghouse hacks, but have heard *crickets* about exactly what Cozy Bear was doing in the DNC servers (which had been there at least a year), and who Cozy Bear actually represents (some say FSB, some say SVR). Yet there was this great expose in the WaPo and in some Dutch newspapers that the AIVD had infiltrated the group and knew exactly who each person was and what they were doing. But nothing other than that.

      I also have 2 major areas of concern that I hope any public report/indictments bring to light:

      1) How exactly were the Russians going to pay for their quid pro quo? Much of this revolves around the Flynn allegations, but to me it seems as if Tom Barrack was the ringleader (with an assist from Kushner and Erik Prince). Furthermore, the nuclear reactors to KSA deal is not dead yet, it’s just moved into DoE now. This needs to be exposed as the national security nightmare it really is.

      2) What *really* happened on Election night? And why did Deripaska need that polling data so badly? There’s been a lot of carefully parsed language about voting machines not being hacked, but there’s also room for other interpretations as well. Obviously, this is very sensitive stuff and law enforcement would have to tread very carefully around how it’s released, but I think the American public has a right to know if its election process was influenced, and how exactly it happened, so that they can be assured something like this never happens again.

      • BobCon says:

        I’m also curious whether we’ll get a fuller picture of Russian trolling. The Richard Pinedo deal makes sense in isolation — his ID fraud was useful to the Russian trolls trying to organize activities, so I see why he was charged. What’s more curious to me is why he is the only one so far. I would assume there are other low level dupes in the US doing similar work — are there? If so, what would they reveal about the extent of what the Russians were up to?

      • Tech Support says:

        I don’t think this has been stated outright or even floated by MW or anyone else in all the reporting (so apologies if I’m regurgitating without giving credit) but it’s my opinion that the polling data was fed directly into the social media campaign. Specifically as a way to precision-target the highly configurable Facebook advertising.

        • readerOfTeaLeaves says:

          If Cyrus Farivar (former arstechnica, now nbcnews) is correct, there’s a hearing 3/22 re: Facebook and Cambridge Analytica. FB requesting DC court seal some docs: https://twitter.com/cfarivar/status/1108806332625375232
          Seems curious.

          Meanwhile, in Germany, the government apparently acting as a Yenta to join Deutsche with another bank, in an effort to hide (what must be massive) losses. So… whether any of the roiling mess at Deutsche is related to money flows shifting as law enforcement starts asking more questions, would be an interesting question.

    • cat herder says:

      At least now we have a simple catch-all reply to the trolls: “You’re defending a man who lost an argument with a dead guy.”

  7. viget says:

    Some how, I missed this.

    Apparently, Jessie Liu has been nominated for the #3 at DOJ overseeing *civil* not criminal litigation. Interesting as she is the current USA for DDC, and was one of only 2 other US Attorneys (others were for SDNY, EDNY) to have been interviewed by Trump.

    Wonder if this is her non-recusal recusal?

  8. Joe Manafarce says:

    Interesting post – I have a couple of reactions if you don’t mind:

    Do you think the departures of Mueller prosecutors have any bearing on the likelihood of further indictments? Perhaps I’m overreacting, but I’ve been interpreting them as such as a sign. It seems like if there was something like a major conspiracy prosecution coming down the pipeline, people wouldn’t be leaving the office. I would guess there’s both an internal desire to finish what was started and an institutional incentive to hold on to people who are up to speed if there’s the potential of something major going to trial.

    Do you credit the reporting that Rosenstein is staying around to act as a “heat shield” for the fallout? Hearing that made me extremely pessimistic because Rosenstein only seems to have the potential to act as a heat shield if the report substantially clears Trump (or if whatever eventually gets transmitted is utterly lacking in detail). Mueller doesn’t need a heat shield vis-a-vis Trump once he submits. Moreover, everyone on the right is already convinced that Rosenstein is some kind of anti-Trump hatchet man, so he provides no one with political cover in the event of an inculpatory report unless I’m missing something.

    • vicki greenberg says:

      Joe
      The Washington Examiner clears up the confusion with this headline:
      “Jim Jordan guesses letter to AG on alleged bias prompted high-level departures from Mueller’s team.”
      It is easy to see why Jordan was chosen as alternate captain for congress’s “save the trump” team”

  9. e.a.f. says:

    I’ll buy that!
    It would be nice to know the ending prior to death though. At this age, you don’t even know if you’ll wake up in the morning.
    2 and 5 look good to me

  10. earlofhuntingdon says:

    Maggie Habs seems to think she has a scoop that the Don has realized his biggest legal exposure might be in SDNY, not Mueller.

    I wonder if her concern is why Trump – whose businesses, charitable foundation and election campaign have all been based in Manhattan – played games with Preet at the beginning of his administration, and why he might have pressured BDTS to make a friend of Trump the USA for SDNY. Then there’s what he might have tried to do with Cuomo, the NYAG, and the Manhattan DA to protect himself from state charges. Same worries again with every jurisdiction in which he has a golf course or other Trump property.

    Maggie Hab’s notion of a scoop must have a special New York meaning. Otherwise, she is the one just realizing this, not Trump.

    • BobCon says:

      It’s standard operating procedure for the NY Times to ignore the reporting of other outlets until a story won’t go away. At that point the Times will do its own reporting, writing down what others have reported without attribution on the grounds that it’s now common knowledge.

      When called on this behavior, the Times will resort in a snippy way, usually noting their place on the totem pole if they think they can get away with it.

      In other words, they commit a double sin of shunning news when others report it, and then stealing it when shunning is no longer an option. It’s not a story until the Times claims ownership, and once they claim ownership, it doesn’t belong to anyone else.

    • P J Evans says:

      Pompeo is being dishonest – the people who believe that Himself was sent by a deity are the same ones who want to convert or kill all the Jewish people they can, in order to bring their mythical (and very much non-biblical) “rapture”.

    • e.a.f. says:

      and they appointed this nut bar to what position? Welcome to the Christian Taliban. Just another e. g. of how the U.S.A. is a country in decline.

      Thought I heard something like this on t.v. while half asleep and thought it was part of a nightmare. These Americans truly are delusional and a country in decline if this is what passes for member of the American government. Save the Christians and the Jews? OMG, that is funny. With idiots like dtrumpy and poppeo, the world might be coming to an end, but it won’t be due to any “divine” intervention.

  11. J Barker says:

    Question regarding the aftermath of Options 2: could the details if an overarching conspiracy charge be so essentially tied to Trump that there would be no way to charge the various other co-conspirators without extensively discussing Trump himself– even if only as an unnamed and unindicted co-conspirator? For example, maybe there is just no way to coherently and compellingly lay out a narrative of the other co-conspirator’s crimes without saying how those crimes relate to Trump’s motives, desires, actions, and directives.

    If so, I wonder whether the twin DOJ policies of (1) “don’t release damning info on someone you don’t charge policy”, and (2) “can’t indict a sitting POTUS” might imply *both* that no evidence of Trump’s crimes can be made public *and* that no superseding indictment of the other co-conspirators may be brought. If fact, the same reasoning might then lead Barr to conclude that he cannot make public the info on the other co-conspirators, since he isn’t charging them either!

  12. skua says:

    “Mueller will submit his report on or before month/day/20XX” has been promised so many times, by often shady character with ulterior motives, that I no longer see benefit in believing the latest prophet or prophecy on its submission date or content.

    If there is no present danger around national security then my preference is for as much wrong-doing around federal crimes by Trump et al, to remain unaccounced and unpardoned until after Trump leaves the White House in early 2021.
    Having Trump easily indictable and arrestable and without the pardon power is a soothing scenario for me. (Although, not being a lawyer, this may be a fool’s dream that I trust bmaz would somewhat roughly disabuse me of in short order.)

    • bmaz says:

      I am in the same boat of hope as you. There are pretty clearly national security issues. But the “easily indictable and arrestable” part is a far different thing. And the way it all fits in with pertinent statutes of limitation is really hard and complex. It is pretty maddening.

  13. Marinela says:

    Just a speculation on my part. Mueller is preparing indictments close to Trump family, so he fanned out all the unfinished investigations/prosecutions to every DOJ/FBI corners before the final indictments could became public.

    Or maybe this is wishful thinking.

    Cannot figure out what to make about Rosenstein leaving in March, but now he is staying longer. Mueller reports to Bill Barr, so how much involvement between R and Mueller team now?

  14. Michael says:

    EW: “[…] doing anything but admitting that we don’t know is a waste of air.”

    This! (A waste of time as well, IMHO.)

    Que sera sera. In the mean time, put Mueller out of mind and put your attention on the plethora of awful projects that Orange Precedent is trying to pull off.

  15. Leila512 says:

    Am I missing something? What happened to all the suspicious interactions among Middle East players/Kushner/Broidy/Nader/Barrack/Prince/Russians et al? What happens to these investigations–do they get assigned to DOJ national security or FBI? For me, it’s unacceptable that these issues go without investigation and explanation because of the reeking corruption and national security risks.

  16. cfost says:

    If I were a GOP strategist, I would try to raise hopes and expectations regarding a “Mueller Report” so high that when the denouement finally arrives, it will FEEL disappointing. Kind of like Manafort’s sentences.
    The folks at the FBI and the DOJ (the ones that Trump and the GOP have been “investigating,” firing and discrediting for two years) have a shit-ton of evidence on Trump and his “family.” They’ve been collecting it for decades. But Trump has political cover for now, by GOPers who are likely themselves compromised. (Also, he has the Speznaz Bikers for Trump, as well as our new Ambassador to Russia, F. Graham.) So the only question is how much of this evidence is going to make it to the courts and the public. Kind of like The Pelican Brief. Some of this evidence is trickling out into the internet ether.
    To me, there are/will be two hopeful signs: handoffs from Mueller to the districts and the states, and a serious discussion in Congress about how to prevent another Trump, followed by real legislation.

    • x174 says:

      Rayne–

      Mahalos for removing the tracking info, i.e., ?action=click&module=Top%20Stories&pgtype=Homepage

      You can always learn plenny here

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