Most days since last spring, a top question for millions of Americans—and more so for the journalists whose reporting they consume—has been to know if and when Donald Trump will be charged with a crime, or perhaps impeached for having committed one. Will prosecutors “get to” the president? Might former associates like Michael Flynn and Paul Manafort “flip on” Trump? Who among those close to the president is enduring the hazards of criminal “exposure,” and for what misdeeds?
The news is awash in this form of non-election year horse race coverage. The prized objective is to glimpse when and how this alarming presidency might end early.
The man in whose hands most of the answers to these questions will rest—special counsel Robert S. Mueller III—is a cipher and phantom. He issues no statements, holds no press conferences, gives no interviews, pushes out no tweets. The news shows can only rerun footage of Mueller testifying before Congress when he was FBI director or delivering a commencement address in June that he had promised before his latest call to law enforcement duty.
Last week, for the first time, a photograph appeared in Politico of something Mueller is actually doing. Three ordinary lawyers, none of whom cut a particularly dashing figure, emerged from a courthouse in Washington. There they had been questioning a witness in the grand jury (a spokesperson for former Trump campaign manager and Mueller target Paul Manafort).
One lawyer walked along with a backpack. Another wore an unusual hat and carried a loose folder that looked like it could spill its papers, with their investigative secrets, onto the street. They projected good moods and the intent not to speak to a soul. Mueller was nowhere to be seen. The picture’s power was in its plainness: three relatively unknown attorneys leaving a courthouse with their documents in tow.
In this time of political exigency it is the simple existence of Mueller’s operation, not points his team might put on a legal scoreboard, that matters most. While Trump blows like a major hurricane across the landscape of American legal and political norms, Mueller and his team quietly pull on the levers of law—levers that Trump, so far, has been unable to control.
For each tweet, a subpoena. For each insult or putdown, a question for a witness under oath. For each grand display of braggadocio, the silent picking of a lock to execute an early morning warrant. All of it in service of a mission to tirelessly gather facts, the mother’s milk of the federal prosecutor. Facts that hold up in a courtroom under the most demanding standards of proof. Ones that speak for themselves and do not admit alternatives.
Mueller must intend the contrast. “Bobby Three Sticks”—the behind-the-back nickname pinned on him by FBI agents who were struck by Director Mueller’s patrician, uncompromising demeanor and who bridled at his forceful management style—is as seasoned and savvy a player as there is in the legal world of Washington, the federal courts, and elite criminal defense practice.
Mueller knows that his assets are the still-surviving tools of the American rule of law in the most potent forms: the subpoena power, compulsion of secret grand jury testimony, warrants issued under seal upon showings of probable cause, grants of immunity from prosecution, and the authority to indict and credibly threaten to do so.
Merely to appear to be putting these tools to regular use, even to leave his anxious audience wondering where and when he is using them, represents a singular counterpoint in public life to Trump’s “l’état, c’est moi” presidency.
Trump must know this, too, or feel it in his bones. It’s one potential explanation for him delivering a sordid and humiliating dressing-down to his own attorney general, whom he blames for Mueller’s existence, a degrading spectacle that would have been unthinkable in the executive offices of George W. Bush or Barack Obama. Steve Bannon certainly understands it, having uttered the overstatement on 60 Minutes that the cause of Mueller’s appointment—Trump’s decision to fire former FBI Director James Comey—was the worst mistake in modern political history.
Mueller surely appreciates other realities. He is almost certainly not going to report to Deputy Attorney General Rod Rosenstein, his supervisor in Trump’s Justice Department, that he plans to indict a sitting president in the face of the department’s most recent legal opinion concluding that the law does not permit it. And absent Mueller uncovering a vastly more sinister criminal plot, the House of Representatives, as long as it remains in Republican control, is not going to vote to impeach this president.
Mueller must also understand the interaction of time’s passage with the president’s openly professed desire, all else equal, to terminate Mueller’s command. Thus, Mueller cannot simply brandish his legal weapons. He needs to plant a few flags. By demonstrating, likely with an indictment or two, that criminal proceedings in the Russia matter are both of real substance and well along the road, Mueller will make it far more politically costly for Trump to truncate matters by shutting down the special counsel’s office.
Mueller’s optimal approach could be to move steadily, to remain very much in the picture but not to hurry things too much, perhaps not unveiling major evidence until as far out as the congressional midterms of 2018. In this approach, he wouldn’t hastily call forward ultimate questions in a manner that could cause his band of rule-of-law police officers to exit the scene or be pushed away too early in this presidency.
Americans should be patiently satisfied with such an equilibrium. Mueller’s work is unlikely to bring down Trump in the end—except perhaps at the ballot box. The steady lawyers’ work of Mueller’s team is accomplishing something at least as important, though. It is a daily reminder of the hovering, comforting presence of regular law.
Indeed, Mueller himself, with his buttoned-down demeanor, sterling reputation, and all-business approach personifies the intersecting domains of law and fact. He is the anti-Trump. His presence alone could be what the country needs to survive this presidency.