by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Now, the 2018 midterms are less than 100 days away, and a president not on the ballot is at the center of a highly publicized investigation. Special counsel Robert Mueller’s politically charged Trump-Russia probe shows no sign of letting up as the days until Nov. 6 tick away.
If it is still going full force a month from now, Mueller, like [Kenneth] Starr before him, will have a decision to make. Does he race to deliver a report, and possibly more indictments, by some specific cutoff date, such as Labor Day? Does he go dark? Does he keep plowing ahead? What the special counsel chooses to do could be one of the most consequential decisions of a critical election season.
There are no specific, detailed rules for Mueller to follow. Read discussions of prosecutors and elections, and you’ll find references to Justice Department “policies” and “customs” and “practices” and “traditions,” all to the effect that prosecutors should not take any action to affect the outcome of an election. But there’s no written-in-stone rule about it. …
… [T]here are excellent examples of what not to do. In 1992, Iran-Contra independent counsel Lawrence Walsh indicted former Defense Secretary Caspar Weinberger four days before the presidential election, setting off controversy that some believe contributed to the defeat of President George H.W. Bush. A judge threw out the indictment six weeks later, but the damage was done; Clinton was victorious and heading to the White House.