Don't expect the Special Counsel to simply flip targets and climb upward, toward Trump. Investigations in complex litigation aren't always and only linear.
Litigation Isn't A Ladder: What You Need To Know About Mueller's Investigation
December 8, 2017

Special Counsel Mueller has charged Paul Manafort and Rick Gates with complex financial crimes, including conspiracy, fraud, and money laundering. Mueller also has procured guilty pleas for lying to FBI agents from George Papadopoulos and Michael "Lock Her Up!" Flynn.

(Recalling Flynn's cheer-leading at the Republican National Convention never gets old, does it? Karma, your table is ready.)

In the wake of these pleas, legal commentators too numerous to name have contended that Special Counsel Mueller appears to be following a very traditional prosecutorial plan: he's looking for the ladder up. They say, for example, here and here, that, in an investigation of a criminal enterprise, prosecutors identify the most legally vulnerable smaller fish and persuade them to plead out to lesser charges, with promises of relatively lenient treatment, in exchange for informing on the bigger fish: the planners and financiers of whatever criminal enterprise has drawn the prosecutor's attention.

And, this may in fact be what Mr. Mueller is doing. Mr. Papadopoulos and Mr. Flynn might be busily implicating other targets of interest to Mueller, though Preet Bharara, the former U.S. Attorney for the Southern District of New York, isn't so sure.

Regardless, as the investigation proceeds (assuming Mr. Trump doesn't fire Mueller and anyone else who poses an investigative threat to him), keep in mind two things: the specific scope of Mueller's original assignment and the nature of the factual landscape in front of him.

Mueller's Mandate Is Broad, But Non-Specific

First, here's the scope of Mueller's remit:

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals
associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. ยง 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

From the remit, it's plain that Mueller's investigative assignment is topically specific, but without any preconceived specific identification of alleged crimes. It also has a "flow-from" clause ("...any matters that arose or may arise directly...") and a "reservation" clause ("...any other matters within the scope..."). And, finally, the remit authorizes Mueller " prosecute federal crimes arising from the investigation of these matters..." but only if he finds that "necessary and appropriate."

Mueller's Investigative Arc Is Unpredictable

In other words, his instructions impel him to look into allegations about Russia and the Trump campaign, see where they factually lead, and decide whether to prosecute anyone based on what he finds. Notably, there are no specific commands to prosecute anyone or any crimes he might discover. He's given broad discretion.

Even before the recent dumbfounding stories broke about Mr. Flynn, Russia, and for-profit nuclear reactor projects in the Middle East, this investigation of "coordination between the Russian government and individuals associated with the campaign of President Donald Trump" was factually complex. It has introduced us to many alleged points of coordination on an unknown - "dizzying" might be a better word - number of interlocking and parallel factual paths with many alleged participants and multiple legal and financial issues.

I've never been a prosecutor, but I spent decades engaged in complex civil litigation, with multiple legal and factual issues in play and numerous witnesses and parties, including highly specialized evidentiary areas, such as finance and accounting for large organizations developing and managing large construction projects. In civil litigation, discovery - demands to witnesses and parties for production of facts, documents, and testimony - is the vehicle analogous to what Mueller's investigators are doing in the Trump-Russia investigation.

My goal for my client was always to construct and submit our best factual and legal case, to enable my client to prevail in the litigation or minimize its exposure to liability. I'm a bit dense, so it took a while for me to understand that I did a better job of investigating my cases, and finding how the facts related to the applicable law, when I followed the evidence where it led, without preconceptions. I discovered that preconceptions and assumptions, whether factual or legal, narrowed my vision and could cause me to overlook important facts, documents, witnesses, legal theories, or any or all of the above.

"Chaos Is A Ladder," (H/t "Game of Thrones") But Litigation Is A Maze.

There are two important takeaways from this for Mueller-watchers.

First, people interested in the investigation should not be surprised or draw inferences if there are periods where nothing appears to be happening - when no indictments or pleas issue forth from the investigation. If Mr. Mueller is doing his job properly, he's reserving judgment on what he learns because he can't yet know where it will lead or whom it will implicate and in what criminal conduct or enterprises.

The silences in this investigation could be especially prolonged, because the Mueller investigation seems, by and large, to be notably leak-proof. This feature is unsettling for potential targets in and out of the administration and their lawyers. It's also a tactical advantage for Mueller's team in dealing with witnesses and potential targets, because they don't know what Mueller knows about their conduct.

Second, people should not be surprised if there are more indictments or pleas from relatively small fish, on what seem to be trivial or tangential issues, before anything significant happens to any higher-profile potential targets (e.g., Trump, Pence, Priebus, Bannon, Conway, and Kushner). Complex investigations can be non-linear: if allowed to develop by finding and aggregating facts, without preconceptions about their significance or insignificance, investigations don't move always or only upward, from smaller fish to larger fish. An investigation can move laterally, downward, or diagonally before it heads up again, if it ever does. As facts accumulate, they may answer questions, but they can also raise new ones and suggest different or additional directions for an investigation.

Instead of thinking of Mueller's investigation as a ladder, therefore, it might be better to visualize it as a maze with clear paths and dead-ends between multiple entry and exit points. None of us can predict, therefore, when or where this investigation will progress or end.

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