We don’t know how or when special counsel Robert Mueller’s investigation into Russian interference in the 2016 election will end. It could wrap up in a few weeks or many months and could play out in several ways.
There might be a political bombshell, like a revelation that President Trump’s 2016 campaign was involved with election interference. Or it could fizzle out, with no additional major revelations and no evidence of wrongdoing by Trump. With the help of legal experts, I’ve spun out five plausible scenarios for how the special counsel’s investigation might conclude. Each carries different amounts of legal and political risk for Trump. Let’s start with the scenario that would be most harmful to Trump.
Scenario 1: Trump is implicated in some form of coordination with Russia to interfere with the 2016 election
So far, Mueller’s legal filings have made one thing abundantly clear: The special counsel has evidence that Russian operatives engaged in a sustained effort to boost Trump’s candidacy and undermine Hillary Clinton’s. What we don’t know is whether the Trump campaign — or Trump himself — knew about these efforts, encouraged them or actively helped promote them. For Trump, one of the worst possible outcomes of the Mueller investigation would be for the special counsel to present evidence that Trump deliberately cooperated with Russian efforts to undermine the election. It would likely lead to calls among House Democrats for Trump to be impeached.
If Mueller has this evidence and an appetite for a legal battle that will probably end up at the Supreme Court, he could try to test a longtime constitutional hypothetical and charge Trump with a federal crime. But most experts I spoke with think he’ll abide by Justice Department guidelines that say indicting a sitting president is unconstitutional. A likelier outcome in this situation is that Trump’s involvement could be spelled out in charges against other people (similar to the way Trump was implicated in campaign finance violations by his former lawyer, Michael Cohen, but not explicitly named). Trump could also be named as an unindicted co-conspirator, as the grand jury in the Watergate investigation did with Richard Nixon, although that is also discouraged by the Justice Department. Even if he didn’t face any immediate legal liability, both of those outcomes could be very politically damaging to Trump, because his alleged wrongdoing would still be out in the open.
Alternatively, Mueller could include in his final report any information he finds about presidential misconduct, which could be just as damning if the relevant parts of the report are released to Congress or the public. When he concludes his work, Mueller is required to submit a confidential accounting of his indictment decisions. And that information could be presented in a myriad of ways. “He could use that report to describe a lot of things his team has uncovered that didn’t make their way into criminal charges,” said Joshua Geltzer, executive director of Georgetown’s Institute for Constitutional Advocacy and Protection. “Or it could be a very sparse report that essentially recaps what we’ve already seen through Mueller’s legal filings — or anything in between.”
Another way Trump’s wrongdoing could be communicated would be for Mueller to work with his grand jury to create a document to submit to Congress. This is one of the actions that Leon Jaworski, a special prosecutor in the Watergate investigation, took in 1974, when his grand jurors submitted what’s known as the Watergate “road map” to the House of Representatives. “It was essentially a guide for the House, which was considering articles of impeachment, to help clarify what criminal offenses the president had actually been implicated in,” said Andrew Coan, a professor of law at the University of Arizona and the author of a new book about the history of special counsel investigations. This would be a surprising move, though, Coan said, because it would bypass the courts and the final report to the attorney general, which are the two primary methods that a special counsel has to communicate the results of an investigation.
Scenario 2: Trump is implicated in obstruction of justice
Another possibility is that Trump isn’t implicated in Russian attempts to influence the 2016 election but there is evidence that he illegally or inappropriately tried to stymie Mueller’s investigation. Mueller has reportedly been looking into whether Trump obstructed justice or tampered with witnesses, but how big a deal would it be if those inquiries bear fruit?
The legal risks to Trump are lower here, because an obstruction of justice case could be hard to make. If Mueller believes Trump committed a crime of obstruction — and has evidence to support it — he could relay that information in the ways I described above, through charging documents, his final report or a grand jury submission to Congress. But the legal bar for obstruction of justice is high, according to Laurie Levenson, a professor at Loyola Law School, Los Angeles. And, she said, it’s possible that even if Mueller finds it troubling or inappropriate, Trump’s behavior may not clear that threshold. A description of potentially obstructive behavior could, therefore, end up in a section of Mueller’s final report in which he explains why he chose not to issue charges against certain people.
But even if Mueller doesn’t charge Trump with obstruction of justice, a description of potentially obstructive behavior could still have significant political fallout, depending on what Mueller says and what is made public. In that situation, the real question will be how politicians respond. “You could see a scenario where Mueller explains why this was a close call and why he landed where he did,” Levenson said. “But it’s very unlikely that Mueller will tell Congress if he thinks something is impeachable but not criminal. He’ll outline the facts and let them take it from there.”
The amount of political pressure that results, though, could depend on whether there are new revelations — or if Mueller simply outlines information that is already publicly known. If it’s the latter, Republican support for impeaching Trump and removing him from office could be more difficult to marshal. According to Lisa Kern Griffin, a professor of law at Duke University and a former federal prosecutor, Trump may have insulated himself from some backlash because he didn’t try to conceal his potentially obstructive behaviors — in the process, “numbing” observers to its significance.
Scenario 3: Trump isn’t accused of wrongdoing, but someone close to him is
What happens if someone close to Trump — for example, Donald Trump Jr., who has reportedly said that he expects to be indicted by Mueller — is charged in the Russia probe, but Trump himself isn’t accused of wrongdoing? That would be relatively good news for Trump; Katy Harriger, who is a political science professor at Wake Forest University and studies special prosecutor investigations, said he might be able to weather the scandal — much as Ronald Reagan did during the Iran-Contra investigation, which ended up implicating Reagan’s defense secretary. But he wouldn’t be out of the woods for a few reasons.
First, Trump might be tempted to issue a pardon. It wouldn’t be unprecedented for a president to pardon someone who got into legal trouble because of a special counsel investigation, as I wrote last year, but the timing matters a lot. If a pardon interferes with an ongoing investigation, it could open Trump up to obstruction of justice charges.
Another possible consequence of the indictment of a close business associate of Trump’s is that it could add fuel to the political fire around the president. The charges could give Democrats in Congress more justification for pursuing their own investigations, possibly into Trump’s family businesses. Harriger noted that unlike Reagan, Trump is only in his first term, so the Democrats’ probes could end up eroding his popularity and potentially hurt his chances in 2020.
Scenario 4: Mueller’s findings aren’t made public, so we don’t know whether Trump is implicated in wrongdoing
All three of the previous scenarios are based on the assumption that the key findings of Mueller’s investigation will become publicly available. But it’s possible that Mueller will conclude his investigation, submit his report and trigger a battle between Congress and the executive branch about whether his conclusions should be made public. That’s because once Mueller submits his report, it’s largely up to the attorney general to decide what to do with it.
This scenario is why Senate Democrats spent much of the confirmation hearings for William Barr, Trump’s pick to be the next attorney general, grilling him about how he would handle Mueller’s report. Barr promised transparency but also wouldn’t make any commitments about how much of the report he would release publicly. If the report, or parts of it, aren’t made public, then we might not know if Trump is implicated in wrongdoing that didn’t make its way into an indictment.
Even if much of Mueller’s report is made public, several experts told me that redactions seem likely to protect information that relates to other Justice Department investigations. And the Trump administration could try to suppress parts of the report by citing executive privilege, which means that some evidence of wrongdoing by the president could be held back.
House Democrats do have some tools at their disposal to respond if the attorney general declines to release the entire report or significant portions of it. They could subpoena the report or call Mueller to testify about his findings. Either way, there would likely be a dramatic separation-of-powers showdown. But it wouldn’t be resolved quickly.
Scenario 5: The findings are made public, and neither the president nor any of his close associates are implicated in further wrongdoing
In December, my colleague Perry Bacon Jr. and I speculated that Mueller might be writing his “report” in real time, through his detailed court filings. If this turns out to be true, the ending of the investigation may be somewhat anticlimactic, because all of the relevant information will already be known. And unless there are bombshells between now and when Mueller wraps up his probe, the investigation might not end up touching Trump or his close associates at all. If that happens, Trump will likely claim that he has been exonerated.
But even if the Mueller investigation ends without big, bad news for the president, Trump’s legal troubles are likely to continue — indeed, more hazards are already on the horizon. Federal prosecutors in New York — who already secured a guilty plea from Cohen, for a campaign finance violation that implicated Trump — are reportedly looking into spending around Trump’s inauguration and Trump Organization executives’ connections to illegal campaign payments.
And whereas the mandate for Mueller’s investigation was relatively narrow, other federal and state prosecutors have broad latitude to investigate potential corporate fraud, tax violations and other offenses that were out of Mueller’s purview. “In my view, the more obvious threat to Trump is coming from federal and state prosecutors in New York — maybe having less to do with the Russia component but involving campaign finance violations, potentially money laundering, misconduct in the context of the Trump Organization,” Griffin said.
And this, perhaps, is the most important lesson from all of these scenarios: that whenever the Mueller investigation does finally end, it’s likely to trigger another high-profile process — whether it’s a fight over the final report, further investigations by House Democrats and other prosecutors, or even impeachment proceedings. So whatever happens, don’t expect the drama to end when Mueller packs up his office and turns off the lights.