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Ex-Watergate Counsel Sees Mueller Probe as Real Loser in the Election
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8 Nov 2018 07:23 PM EST

By Laura Tucker, Staff writer; Image: Philip Lacovara (Image source: Screenshot) 


Those who were in authority positions during Watergate and the Bill Clinton investigation like to throw their two-cents into Special Counsel Robert Mueller's investigation. It's that whole "been there — done that" type of thing.


Philip Lacovara was formerly the president of the District of Columbia Bar and was also counsel to the Watergate special prosecutors. This means he knows what he's talking about regarding political laws and investigations of corrupt presidents. He added his thoughts this week in an op-ed for The Washington Post. 

The Russia investigation, being led by Mueller, has been much talked about since the Democrats won control of the House after the midterm elections. At first people were asking if they could indict Donald Trump, but after the president fired Attorney General Jeff Sessions, it's left the direction of Mueller's investigation up in the air, as the new acting attorney general, Matthew Whitaker, could end the investigation if he finds the right reasoning to fire Mueller.


Lacovara says all of this has made Mueller's probe "politically irrelevant. By waiting until after the midterms to issue his final report about President Trump's possible culpability, Mueller has effectively missed his market and may have doomed the investigation." 

However, there's an unwritten Justice Department rule requiring prosecutors to not announce any information that would influence an election. They're also not allowed to time the proceedings so that they will fall at a time that will influence an election. The window in which this is not allowed is 60 days.


Barring that, Mueller really couldn't release his findings last week, or the past two months for that matter.  

Lacovara notes that in "virtually every significant contested race for a GOP candidate, specifically in the Senate, the president's endorsements of these candidates led to them being elected, meaning it's one more person who would have his support in Congress.


Yet, the possibility that there will be major revelations in Mueller's final report, that is expected to be released very soon, didn't really influence the midterm elections according to Lacovara. 

However, he sees two consequences as fallout from the Trump effect on the elections, the first being that Trump was able to fire Sessions, "whose recusal from investigating Russia's election interference resulted in Mueller's appointment, and immediately replace him, at least temporarily, with a loyalist, Matthew Whitaker, who already is on the record criticizing Mueller's investigation."


This ends Deputy Attorney General Rod J. Rosenstein's role as "protective buffer between Mueller and the president." The new attorney general, whether permanent or Whitaker, will be free to reign in Mueller, his investigation, and his findings. 

Mueller's report has to go to the attorney general who will decide what to do with it. Lacovara believes the attorney general will be "far more comfortable suppressing the report now that firmer Republican control of the Senate protects not only Trump but also the new attorney general" from being kicked to the curb during a trial following an impeachment.


Secondly, though the Democratic majority in the House will be able to "annoy Trump and to hector the new attorney general," Lacovara points out Mueller can no longer secure the legislative protection for the investigation that had been proposed earlier. 

The Senate firmed up their majority in the midterms by picking up at least three more seats, and Republicans such as Bob Corker (R-TN) and Jeff Flake (R-AZ) who may have wanted to "protect the integrity of the investigation," are retiring.


It makes an impeachment by the House less of a factor in stopping Trump from killing Mueller's investigation and/or report. Lacovara believes there is little chance that any amount of Trump's misdeeds would persuade enough Republican senators to join the Democrats to convict and remove Trump after an impeachment. 

Additionally, Lacovara doesn't believe Mueller has much chance of uncovering a "smoking gun" like in the Watergate scandal. The smoking gun led Republican senators to warn Richard Nixon that he would lose an impeachment trial, and that forced him into resigning.


He points to the fact that the Watergate smoking gun was an incriminating recording, yet Trump has already faced those and survived. He first faced the "Access Hollywood" tape and later a Michael Cohen-recorded tape where it was clear he lied about not knowing about the payoff to Karen McDougal. 

With all that considered, Lacovara believes "Trump may be emboldened to strangle the Mueller investigation." He believes the president has a variety of ways in which to do so.


The president has regularly tried to discredit the investigation as a "witch hunt" and a "hoax," with little care of paying politically for that. He could pardon everyone involved, including himself; instruct a new attorney general to fire Mueller; cut off the special counsel's resources; or keep the final report under wraps. 

If a new attorney general tried to bury Mueller's report, the House Judiciary Committee could demand access. "But Trump would surely come up with reasons for ordering the Justice Department to defy such a demand, such as claiming executive privilege," explains Lacovara.


In addition to that, Trump now has his ringer sitting in the Supreme Court with Brett Kavanaugh. He's likely to tip a Supreme Court decision in the president's favor if any argument between all these players reaches that far. 

Lacovara closed by saying, "Democrats have much to celebrate about the midterms, but their elation should be tempered by the realization that the election also may have spelled the end for Mueller's Russia investigation, which was too long in getting to the punchline."

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