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The Special Counsel's office, nearly leak-proof since its inception more than a year ago, can appear to be operating in some parallel universe unmoved by the every-day political turmoil. But in the course of conversations I've had researching a new book on President Trump and the forces arrayed against him, it has become clear that Robert Mueller and his office are already preparing for a life or death confrontation with the President and the mother of all constitutional crises.
  Over the last several months the Mueller office has prepared a possible indictment of the president on charges related to obstruction of justice and devised a legal strategy to navigate the inevitable fallout from such an indictment.
  My discussions have been with both White House advisors and people close to the investigation—that is, sources on both sides of the possible conflict. No source involved in this story would speak on the record. But in broad-strokes each side's understanding matches the account provided to me by the other side.
  Since at least April the Special Counsel has had in place a set of allegations, proposed charges, and an aggressive legal theory to support the indictment of the president on obstruction charges. In the last few weeks, as the President has indulged his pardon authority, the Mueller team has also developed a legal basis to oppose what the Special Counsel believes will be a likely pardon of former National Security Advisor, Michael Flynn—who had previously struck a plea bargain which could include his testimony against the President—and what it believes to be another step in the President's obstruction efforts.
  At this point, the case for indictment has, in effect, a judge of one, since the Mueller team must get the approval of Deputy Attorney General Rod Rosenstein to proceed. As recently as April, Rosenstein publicly declared that the President was not a target, but this may have been a kind of fig leaf: technically the President does not become a formal target until Rosenstein agrees to designate him as one. It may also illustrate a conflict between the Deputy Attorney General and the investigators he has overseen since the recusal of Attorney General Jeff Sessions from the Russia-related investigation—though, according to one source, Mueller believes he does have the support of his boss.
  The proposed indictment would be all the more controversial because it finds the entire narrative of the case for obstruction in plain sight. Almost nothing in it involves new information; rather, it takes well-covered public events and moves them to a set of circumstantial conclusions. There is no smoking gun beyond the often flagrant, custom-breaking, events of the President's 16 months in office. Indeed, much of the evidence is based on the President's public statements and tweets about those events. "This indictment could have been drafted without anyone being interviewed," said one source. This is, from the perspective of White House sources good news: the case then, is just an issue of what motives are ascribed to the President's behavior—behavior that is, the President's supporters believe it is easy to show, impulsive and not thought out. Hence no intent. For the Mueller team, it is precisely that careless behavior and flagrant disregard for constitutional standards that they hope to put on trial.
  According to a source involved in the Mueller strategy, the plan to indict the President is now "more advanced" than it was when the terms of the indictment were agreed in April. In the intervening months, the president’s lawyers, spokespersons and surrogates have staged a very public debate about whether such a legal proceeding would be constitutional—in effect trying to discredit, ahead of time, any prosecutorial action the Special Counsel’s office might take. This may be a preemptive response to an indictment they expect is forthcoming. It may also be an effort to pressure Rosenstein. It may even be an effort to convince Mueller of that, since some in the White House believe that that the plan to indict is not a strategy yet embraced by the whole Special Counsel’s office, but one that is being advocated only by its most virulently anti-Trump purists on the investigative team—most notably by the number two lawyer under Mueller, Andrew Weissmann.
  It may be noteworthy that there appears now not to be plan for an indictment related to collusion, although, legal experts say, that could come later and may depend on new information from the investigation of the President's personal attorney, Michael Cohen. It is also possible that alternative plans have been made—preparation for more expansive indictments, for instance, or for a broader report that would include the allegations of obstruction but not seek to indict the President.
  The White House view is that without the underlying collusion charge—"real collusion," in the words of one White House advisor, "and not just a bunch of Facebook ads and some trolls"—Mueller will be presenting a weak and politically-motivated case. "That's a witch hunt," said the advisor. The view of the Mueller team, or at least that of its most ardent members, seems to be that the obstruction charges go to the very heart of exposing how Trump has abused his power and turned the White House into a corrupt fiefdom.
  According to one source, Mueller could hardly contain his disgust when last month Rudy Giuliani, the President's new lawyer—hired to make a case for the President on television and to push back against the Mueller team—airily dismissed the notion that a sitting president can be indicted. Adding insult to injury, Giuliani—who a White House source said has likely learned of aspects of the pending indictment—said Mueller agreed with that assessment. White House sources believe Giuliani was daring the Special Counsel to tip his hand. But Mueller, ever in character, contained his outrage and continued to hold his cards close, as his team finished preparing the obstruction case and refined the legal theories under which it would claim the right to haul the president into court.
  According to the proposed indictment, the President's scheme to obstruct the FBI's investigation into connections between the Trump campaign and Russian efforts to undermine the U.S. election began on the 7th day of the Trump administration. Three days prior, on January 24, National Security Advisor, Michael Flynn, lied to the FBI about his contacts with the Russian Ambassador, Sergey Kislyak. These were contacts, according to the indictment, directed by an unnamed but ranking member of the Presidential Transition team. In the view of several former DOJ lawyers who discussed the case with me, that unnamed person could be Trump himself. From January 27th, when the President had the one-on-one dinner with FBI Director James Comey, through to the middle of April, the President conducted a cat and mouse game with Comey, testing his loyalty and trying to establish his willingness to aide the President and protect Flynn.  On May 9th, baldly admitting his dissatisfaction with Comey's unwillingness to play ball on Russia, the President fired the FBI director. Shortly thereafter, continuing his efforts to disrupt the investigation, the President turned his ire on the Attorney General, Jeff Sessions, pressuring him to fall into line on the President's behalf, and on Robert Mueller, the newly appointed Special Counsel, pushing to fire him to block the investigation.
  The second episode addressed in the indictment took place on July 8, on Air Force one, where the President personally directed his son, Don, Jr., to lie about the reason for his meeting in Trump Tower, during the campaign, with representatives of the Russian government—a meeting about collaborating with the Russians to undermine Hillary Clinton's campaign.
  The third episode detailed in the indictment began on June 7th, after reports that Deputy FBI Director Andrew McCabe would confirm statements made by James Comey about how the president had tried to intimidate him. In response, the President began a campaign of harassment, threats, and intimidation against McCabe. On March 16, 2018, after McCabe testified before Congress, the President, in retaliation, caused his dismissal and the loss of his pension.


  The Mueller team may have a high hurdle in convincing Rosenstein to approve the indictment. In its preparation for a possible indictment, the Mueller team argues that nothing in the Constitution or in a statute suggests a status with regard to criminal prosecution for the President different from any other federal office. Nor is there any statute or case law that finds that impeachment has to come before an indictment. But the Department of Justice's standing view precludes charging a sitting president with a crime. This is based on an opinion written by the Office of Legal Counsel in the Watergate era and recently expressed in hyperbolic terms by Giuliani: the President could kill James Comey if he wanted to without fear of prosecution. But, according to several former DOJ lawyers, Rosenstein in this circumstance may have the power to override the Office of Legal Counsel opinion. The Mueller team appears to believe that Rosenstein's pledge before congress that, absent malfeasance, he will support the Special Counsel's independence with regard to the Russian investigation, means he will let the indictment go forward. In one view—and in the suspicion of some in the White House—he may have already authorized Mueller to proceed with the indictment.
  The White House has made the argument—supported in many television appearances by Trump legal surrogate, Alan Dershowitz— that a president cannot be prosecuted for exercising his constitutional prerogatives, even if those actions foster a crime, that the President, as the ultimate federal office, and the nation's chief law enforcement officer, enjoys nearly unfettered latitude in how he carries out his duties. "I don't think you are going to find a court who will not see the president's role as unique," said one White House advisor. "The Mueller theories are wishful thinking."
  An indictment for obstruction of Justice is described in similar ways by both Mueller and White House insiders: it puts the President's public behavior on trial. The nature of that behavior, for the Mueller team, is corrupt; this, according to the White House, is how voters elected the President to behave.
  The Special Counsel seems less worried about its legal position than it does about it's existential one—continuing to anticipate how the President might use his authority to move against it.
  It sees its most immediate threat as a move by the President to replace Rosenstein. Here it believes that in the inevitable Supreme Court battle that would follow a direct attempt by the President to fire the Special Counsel, the Court would likely rebuff such an expansion of Presidential authority. At the same time, according to its internal research, the Mueller team understands that the President, acting with only somewhat more subtlety, would have the authority to order the Attorney General—even given his prior recusal—to repeal the Special Counsel regulations and close down the investigation. He can fire the Attorney General if he refuses. The President, could, too, according to the Special Counsel's analysis, fire Rosenstein and seek someone else to oversee the investigation in ways more to his liking. Both of these actions could, the Special Counsel believes, become part of the behavior that it argues in the indictment amounts to a prima facie case for obstruction of justice.
  The Mueller team continues to believe it is protected by political realities—the President can not know how Congress might respond, and it might well respond with impeachment—and by bureaucratic ones. Changes to the Special Counsel authorization might require an extended comment period, meanwhile leaving the Special Counsel's status unchanged.
  Still, what if the President, acting unilaterally, does shut it down? This, people around the President say is the unknown legal area that might be advantageous to the President. The delays and disruption that result as courts sort out the ramifications of the President's actions might well be the President's legal friend—the reason some in the White House have been urging the President to end the investigation, whatever the political fallout.
  If so, what then happens to all the work the Special Counsel's office has done, and, indeed, to the sitting Grand Juries reviewing the evidence? The special counsel's view, according to insiders working on the issues, is that nobody knows. The optimistic legal view is that the Office and staff would survive the Special Counsel's ouster and their work preserved. And that actions taken by the Grand Jury would remain in effect.
  This, however, would probably not be true if the Attorney General refused the next Special Counsel's budget request—due on July 1. That would shut down the whole operation—the Special Counsel staff and grand juries. There might, however, according to research the team has prepared, be enough time between the order and the shuttering for the Special Counsel to share the grand jury evidence with other federal prosecutors, who might act on their own authority to pursue the President.
  The President's constitutional pardon powers appear to be some of the most troubling and threatening issues for the Special Counsel. The Counsel's office believes the President will use his pardon power as an instrument to undermine the investigation.
  According to present and former White House advisors, the President's recent spate of pardons are in part his way of taunting the Special Counsel. The White House, according to these sources, is aware that the Special Counsel has concluded the President's pardon power is near absolute: the President can certainly pardon himself, and others involved in the investigation.
  Early in June, the Special Counsel, believing that a pardon for Michael Flynn was imminent, rushed to build a case that might form an exception to the President's pardon authority. The argument, perhaps a slim-thread one, tries to undermine what both the White House and many outside legal authorities, and much of the Special Counsel's own research, believes to be one of the few unchallengeable powers granted the President. In effect, the Special Counsel continues the theme of it's case: there is a level of obstruction of justice that all reasonable men might know when they see it. If you pardon someone to get yourself off the hook, that's a "corrupt" action. The constitution is not a statute that you might violate, but a larger covenant which you might offend (or, equally, that might protect you). Since the President is in charge of upholding the constitution and much of the constitution is about preventing corrupt acts or abuses of power, the pardon, in the case of Michael Flynn, is, the Mueller team is set to argue, unconstitutional. What's more, since there is an impeachment process in place—or there are impeachment resolutions before congress—and impeachment is the province of Congress, a pardon of a potential witness in this impeachment is an unconstitutional trampling on the separation of powers.

As the President, by nature and design, tries to claim aggressive new powers, the Mueller team, almost in equal proportion, is trying to limit the theory of Presidential power and, even, to criminalize an expansive exercise of those powers.
  People who know and have worked with Mueller find it, at best, unexpected that this traditional by the book G-man would be pursuing such far-reaching legal theories. But one possible explanation, shared by many in the White House, is that Mueller is overly reliant on his staff—in face, is being led by his number two, Andrew Weissmann.
     Weismann has a longstanding reputation for aggression: he was the prosecutor whose pursuit of the accounting firm Arthur Anderson in the Enron debacle ended in its conviction—a judgment reversed well after the firm's bankruptcy and dissolution. One White House advisor likened him to Victor Hugo's obsessed policeman Inspector Javert—a prosecutor consumed with taking down the President. Indeed, Weissmann, who has in the past contributed to Democratic candidates, is a particular bet noir and favorite whipping boy for the White House his central role in the Mueller investigation taken there as evidence of a deep bias against Donald Trump.
  But in another view it is precisely because Mueller, a former Marine, is so by the book and Semper Fi that he finds Trump's behavior to be personally offensive, and, on its face, corrupt. "Bob Mueller is all about limits and rules. Donald Trump has none and acknowledges none," said one lawyer who has worked with Mueller in the past.
  It may yet be even a more profound clash then that, the executive branch at war with itself—the Justice Department against the White House. In this, the President's almost daily tirades against the DOJ, the Attorney General, Jeff Sessions, the Deputy Attorney General, Rosenstein, the former head of the FBI, Comey, and his deputy, Andrew McCabe, are part of an effort to obstruct justice and save himself.
  The Mueller strategy (or Weissmann strategy) is a war strategy, in the view of some legal observers. An indictment of the President would be litigated to the hilt. It would force both the substantive issues of obstruction and abuse of power and the meta issues of Presidential immunity—in essence, the President's claims to being above the law—into open court for a long and painful review and dissection that might shadow the November election.
  Legal experts believe that the Mueller team might well prevail in lower courts with a much less certain outcome in the Supreme Court.
  Were the case to reach the Supreme Court after the November election, it might well be the results of that election that help seal the President's fate not just in Congress but also in the courts.
  "Might such an expansive claim win, yes. Should it win, no." But everyone knows the reality: weak presidents lose cases, strong presidents win them," said Ken Starr, the former independent prosecutor who might know more about the legal pursuit of the president than anyone else on earth.