Special Counsel Robert Mueller. (Dennis Brack/Bloomberg News)

Mueller Probe Doesn’t Need to Shut Down Before Midterms, Officials Say 

(Bloomberg) -- Special Counsel Robert Mueller doesn’t have to shut down his Russia investigation in the weeks before November’s congressional elections despite claims by President Donald Trump’s lawyers that he faces a Sept. 1 deadline, according to current and former U.S. officials.

Mueller can continue his closed-door inquiries, and even issue new indictments up to and after the Nov. 6 voting, without violating a Justice Department policy against actions intended “for the purpose of affecting any election,” they said, asking not to be identified discussing investigative matters.

Mueller Probe Doesn’t Need to Shut Down Before Midterms, Officials Say 

That’s at odds with repeated assertions by Trump’s lawyers. “If it isn’t over by September, then we have a very, very serious violation of the Justice Department rules, and he shouldn’t be conducting one of these investigations in the 60-day period," former New York Mayor Rudy Giuliani said on Fox News last week.

In an interview Tuesday, Giuliani said, “If he doesn’t get it done in the next two or three weeks we will just unload on him like a ton of bricks.” He added, “Write the damn report so we can see it and rebut it.”

The concept of a 60-day quiet period before an election may resonate with the public because of bipartisan condemnation of former FBI Director James Comey’s decision to reopen the investigation into Democrat Hillary Clinton’s use of a private email server shortly before the 2016 presidential election.

‘Doing a Comey’

As early as May, Giuliani was pushing the idea that Mueller had to wrap things up by September or “he is clearly doing a Comey.”

That argument may have gained some traction: Two-thirds of Americans surveyed said Mueller should complete his investigation before the mid-terms, according to a CNN poll conducted by SSRS and released Aug. 14. It showed the view is shared across party lines, with 57 percent of Democrats supporting the timeline along with 69 percent of independents and 72 percent of Republicans.

Any major step that Mueller takes before the election is expected to be vetted and cleared by Justice Department officials, including Deputy Attorney General Rod Rosenstein, who oversees Mueller’s work. But in reality, the Justice Department’s rules are far from clear-cut.

“It’s an absurdity to think that Mueller has to shut down in the coming weeks because of the mid-term elections," said Jeffrey Cramer, a former federal prosecutor. “There is no legal impediment to Mueller continuing his work as we get closer to the election.”

As a former Justice Department official, Giuliani should know better, said Cramer, who’s now managing director of the international investigation firm Berkeley Research Group LLC. “He’s going to play poker against Bob Mueller? That’s not a smart move. Mueller’s holding all the cards.”

The U.S. Attorneys’ Manual prohibits Justice Department personnel from using their official authority or influence to interfere with or affect the result of an election. It also requires prosecutors to consult with the department’s Public Integrity Section of the Criminal Division on major investigative steps.

At the same time, the policy says charges should be brought when they’re ready.

Holder’s Memo

In 2012, Attorney General Eric Holder issued a binding policy memo on election-year activities that still applies. But it went to motivation as the deciding factor.

“Simply put, politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” the memo says. “Law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Justice Department officials have generally interpreted the policy as meaning that major overt activities that could have a political impact shouldn’t be taken 60 days before an election. But that doesn’t prevent closed-door activities such as grand jury subpoenas and interviews of witnesses, and it doesn’t prohibit taking action after voters have made their choices.

Giuliani said the guidelines would preclude an interview of Trump during that time period. “They can’t be interviewing him privately,” he said. “Everyone will know they will be interviewing him and speculating like crazy.”

In addition, it’s not clear that action by Mueller against Trump or those around him could be construed as interfering in the November vote because Trump isn’t on the ballot, one of the former officials added.

Thanksgiving 2017

As far back as last August, Trump’s lawyers were setting timelines many legal analysts viewed as unrealistic. Former White House lawyer Ty Cobb said he would be "embarrassed" if the investigation continued past Thanksgiving 2017. As Thanksgiving came and went, Cobb predicted the investigation would end by December and then in early 2018.

Cobb left the White House in May.

There’s no public sign the shifting timetables set by Trump’s lawyers have had any effect on Mueller’s inquiry, which continues to generate allegations of criminal activity. To date, Mueller has brought charges against more than 30 individuals, including Trump’s former campaign chairman Paul Manafort and former National Security Adviser Michael Flynn.

By comparison, Independent Counsel Ken Starr spent four years investigating President Bill Clinton before releasing his report on the Monica Lewinsky affair, which spun out of a probe into an Arkansas land deal known as Whitewater.

In the investigation into the public outing of CIA agent Valerie Plame, it took almost two years for then Special Counsel Patrick Fitzgerald to indict Scooter Libby, Vice President Dick Cheney’s chief of staff, for lying to investigators and obstruction of justice in October 2005.

Trump’s lawyers have spent almost nine months in back-and-forth negotiations with Mueller’s team over terms of a interview. That issue remains unresolved.

Muller’s team is “not showing any desire to do this quickly,” Giuliani said Tuesday, adding it has yet to hear back from the special counsel’s office on the latest offer for terms of a limited interview.

As for Mueller, he continues to maintain public silence. He speaks only through official legal actions such as indictments -- whenever he’s ready.

©2018 Bloomberg L.P.