Whatever it was before, it’s a real investigation now

If Special Counsel Robert Mueller has opened a grand jury investigation, the witch has fallen from her broom and the dogs are upon her. Whatever it was before, this is now a real investigation. But it isn’t fair to consider the implications and consequences of this new reality without acknowledging that President Donald Trump has a point in asking where is the investigation of Secretary Hillary Clinton’s handling of classified information. Or, more precisely, where was the investigation of Clinton? If there was an actual grand jury investigation of Clinton, it was the best-kept secret in a town where secrets are in short supply. If there wasn’t, then there never was a real investigation.

I am not anti-Hillary, pro-Trump, or vice-versa. I did prosecute a civil case against then-candidate Trump and his Trump University, but we ultimately found common ground with a settlement that offered students nearly full refunds. Beyond that, I have never belonged to a political party or a religious group, and the closest I came to a fraternity was when I pledged DOJ, for which I served as an assistant U.S. attorney and to which I will always feel connected. The Daily Journal asked me to write an op-ed piece and this is it.

My DOJ bond is why I was, and remain, disappointed by the response to the Clinton allegations. Attorneys general do not recuse themselves without stand-ins or defer charging decisions to the FBI, and FBI directors do not hold press conferences to announce non-charging decisions or to denounce uncharged citizens — nor do they provide Congress with real-time updates of their document reviews.

Naturally, compared to what was called an investigation of Clinton, it may seem like Trump is being treated unfairly. He’s not. Having seen the DOJ’s response to the allegations related to Clinton, it is easy to see why Trump would be upset with its response to allegations related to him under Attorney General Jeff Sessions. He shouldn’t be. This is what a real investigation looks like.

Mueller is on the march. Those who cross his broad mandate will feel like they are being chased by Frankenstein’s, not Rosenstein’s, monster. They are fast-talking, fleet-tweeting and ubiquitous. He is tight-lipped, plodding and out-of-sight. But if it hasn’t already, their mocking may soon give way to concern because Mueller’s march will be relentless. He will march into the grand jury room with whatever (U.S.) witnesses he needs and virtually any document the grand jury wants.

You and your confidants have high-powered, well-connected white-collar defense attorneys? Enjoy paying them $15 a minute to talk to Mueller’s hand while he, his team, and 16 or more civilians question you in secret proceedings outside the presence of your lawyers. Secret recorded proceedings, that is. No more after-dinner memos. No more accommodating busy schedules, either. You get a grand jury subpoena telling you when and where to appear, and you obey it. Or a couple U.S. Marshals will show you the way. No more waiting for the press to leak an email or the IRS to finish its audit. This is what a real investigation looks like.

For the 99 percent of the population who have never appeared before a federal grand jury, it is a sobering and stressful experience, particularly for individuals who are typically wrapped in multiple layers of lawyers. Grand jurors are nothing like the familiarly silent poker-faced trial jurors. They will ask you tough questions, and if they think you’re lying, they’ll let you know. They are not rude, and Mueller’s team will ensure professionalism, but grand jurors are not shy. After all, it is their investigation and they take that responsibility seriously, which is why the Fifth Amendment ultimately entrusts charging decisions to them, not prosecutors or politicians.

What is especially daunting for subjects of this particular grand jury investigation is that invoking the Fifth Amendment, which also protects against compelled self-incrimination, is not a practical option for them. Trump has earned a loyal base with a brand that does not run from a fight, and he has condemned those who “take the Fifth.” If Sessions’ recusal landed him in the dog house, taking the Fifth could land someone else in the outhouse. In case there was any uncertainty, Trump has already offered to testify under oath. I doubt that’s a bluff. Throughout both of his depositions in our case, he was engaged, uninhibited with spontaneous remarks, and completely unafraid. Generally speaking, this a prosecutor’s dream and a defense counsel’s nightmare — and that was before he put Nate Silver out of business.

Another reason for concern is that several potential subjects of this investigation have already made, and changed, written and recorded statements related to contacts with the Russian government or their own finances. Inconsistent statements tend to beget more inconsistent statements, particularly when witnesses try to explain them to a roomful of skeptical strangers. To make matters even thornier, because the grand jury transcripts are kept secret, getting stories straight requires witnesses to rely on their memories of what they said in an unfamiliar stressful situation (most people are unaware that the witnesses themselves are not bound by grand jury secrecy rules). Witnesses may also intentionally misrepresent their testimony to make themselves look good (or loyal).

So where is this reality investigation headed? Mueller would not pull colleagues out of lucrative private-sector jobs to hunt witches or chase wild geese, but charging anyone for “colluding” with Russia is less likely than charges for covering up the appearance of collusion. Investigating the Russian half of the collusion just seems too complicated. Such charges will also be unnecessary if Mueller’s team is able to bring false-statement or obstruction charges against the same targets, which is what I expect to happen within the next year.