This week, we learned that the Southern District of New York — my former office — dropped an incendiary subpoena on President Donald Trump’s inaugural committee seeking evidence of mail fraud, wire fraud, money laundering, conspiracy and illegal foreign contributions, and has requested interviews with Trump Organization executives. This is particularly bad news for Trump because, in many respects, the SDNY poses an even more potent threat than special counsel Robert Mueller.
As accomplished and respected as Mueller is, the SDNY has important structural advantages. While Mueller is limited by his appointment to investigating coordination between Russia and the Trump campaign (and matters that “arise directly” from such coordination), the SDNY has no substantive constraints and can go wherever the evidence leads.
Mueller faces political pressure from Trump and the Department of Justice to finish his investigation; the SDNY isn’t going anywhere and can take whatever time it needs. The SDNY is also not subject to the special counsel regulations, which require attorney general approval for major prosecutorial decisions and through which Mueller ultimately must filter his findings.
And, unlike Mueller, the SDNY cannot be fired or defunded; sure, Trump could fire the US attorney for the SDNY, but there will still be 150-plus apolitical career prosecutors ready to carry on.
Take it from an alum, the SDNY is uniquely tenacious and relentless.
In other news, Roger Stone sent mixed signals about whether he might cooperate with Mueller. Trump — perhaps spooked at the possibility of Stone flipping — conspicuously declined to rule out a presidential pardon. And a federal judge is mulling whether to place a gag order on Stone, which could end a bizarre pretrial media blitz complete with Nixonian gesticulation, boastful social media posts and surreal press conferences.
Trump told CBS News that the decision to release Mueller’s report would be “up to the attorney general” before contradicting himself in the next breath, stating, “I don’t know. It depends. I have no idea what it’s going to say.” This as Trump’s attorney general nominee William Barr is up for a Senate Judiciary Committee vote, with questions lingering about whether and how he intends to release Mueller’s report to Congress and the public.
Finally, in his State of the Union address, Trump decried“ridiculous partisan investigations” as the enemy of economic growth. Trump’s ultimatum — stop investigating me, or else the economy will suffer — might rally base political support, but it will not deter Mueller, the SDNY or House Democrats. Similarly, Trump bizarrely declared, “If there is going to be peace and legislation, there cannot be war and investigation.” While peace and war certainly are opposites that by definition cannot coexist, legislation has nothing whatsoever to do with investigation, beyond sort-of rhyming.
Federal grand juries are initially appointed for finite periods of up to 18 months. If that time is about to run out, but the prosecutor needs to continue an investigation, he or she can move a judge to extend the grand jury by up to six more months at a time. Mueller’s grand jury originallywas empaneled for 18 months and, in January 2019, a federal judge granted Mueller’s request to extend it up to six more months. Mueller may not use that entire time, but six months is the maximum extension Mueller could have requested, and he could have — but did not — ask for a shorter extension.
All told, the grand jury extension is one of many indicators that acting Attorney General Matthew Whitaker’s statement that Mueller is “close to being completed” does not mean everything will slam to a halt by Valentine’s Day. Other indicators include: newly filed charges against Stone; ongoing cooperation from Michael Flynn and Rick Gates; unresolved sentencings of Flynn, Gates and Paul Manafort; recently executed search warrants on Stone’s homes, which yielded voluminous potential evidence; the ongoing mystery subpoena battle in the Supreme Court; a potential subpoena on Trump; various congressional investigations into Russian collusion and Trump’s finances (which Trump called “presidential harassment”); the Mueller report with its attendant legal and political battles; and ongoing investigations by the SDNY — to name a few. Reports cnn