Outgoing FBI Director Robert Mueller smiles as he speaks at the Justice Department in Washington, Thursday, Aug. 1, 2013, during his farewell ceremony. Mueller is stepping down in September after 12 years heading the agency. (AP Photo/Evan Vucci) (AP Photo/Evan Vucci)

Yesterday, the special counsel referred three cases of illegal lobbying to the US Attorney for the Southern District of New York for possible prosecution.

The cases involve Gregory B. Craig, who served as the White House counsel under President Barack Obama before leaving to work for the law firm Skadden, Arps, Slate, Meagher & Flom; former Representative Vin Weber, Republican of Minnesota, who joined Mercury Public Affairs, a lobbying firm, after leaving Congress; and Tony Podesta, a high-powered Washington lobbyist whose brother, John D. Podesta, was the chairman of Hillary Clinton’s 2016 presidential campaign.

The three men have not been charged with any crimes, those familiar with the cases said.

At this juncture, the men are suspected of violating the Foreign Agents Registration Act by lobbying for ousted Ukraine president and Putin sockpuppet, Viktor Yanukovych, without having filled out the requisite paperwork. As all three men are professional lobbyists working out of firms who do lobbying, well, professionally, it is kind of hard to write this off as an administrative oversight. It is much more likely that none of them wanted the stench of a Russian quisling attached to them even though they were very happy cashing his checks.

This referral is not a completed investigation that Mueller is handing off to prosecute, rather the US Attorney’s office now has to investigate the cases. This is going to be a time sump for them in three respects. First, all the men involved have access to high-quality legal representation and can’t be bullied into pleading guilty. Second, unlike an average case, the US Attorney can’t say “screw it, let’s move on to real crime,” because Mueller referred the case and the USA is a Trump appointee. Lastly, so long as the investigation doesn’t uncover ancillary acts, like money laundering or selling 20% of the uranium ore in the US to Russia, then it is very, very unlikely that they will be prosecuted. According to the Department of Justice, “Since 1966 there have been no successful criminal prosecutions under FARA and only 3 indictments returned or informations filed charging FARA violations.” And the threshold for criminal prosecution seems to be pretty high, again from DOJ:

The threshold for a criminal investigation is the presence of reason to believe that a significant FARA offense has been committed and that sufficient evidence should be available to prove this. The common threads of the last four FARA criminal investigations were: millions of dollars in receipts or expenditures by the prospective defendants; “core” violations of FARA with jury appeal; and evidence of willfulness. The Tong-Sun Park case involved several million dollars of “Food for Peace” monies, some of which were diverted to bribes and lobbying expenses; the unindicted Government of Iran sponsored “Pro-Shah” demonstrations involved some $11,000,000 in expenditures for the 3 day visit; the McGoff case involved some $11,000,000.00 of South African Government money; and the Zakhem case involved some $7,700,000 in Kuwait Government expenditures for a $2,000,000 plus public relations and lobbying campaign. Tong Sun Park involved bribery; the Pro-Shah demonstrations a massive propaganda display; McGoff an attempt to purchase The Washington Star as a South African propaganda organ; and Zakhem war and peace. FARA criminal prosecutions must be approved by the Criminal Division or higher authority under the United States Attorney’s Manual, and in practice must first be approved by the appropriate United States Attorney’s office.

It seems more likely that this will result in a civil fine and a lot of wasted time.

There is a lot of speculation that this referral, as well as that of Michael Cohen, is based on Mueller determining that these crimes fell outside his charter. That is highly unlikely given his past record. If “outside his charter” were a real concern, Manafort wouldn’t be on trial. Mueller could be starting the process of winding down his investigation. Again, this is unlikely. Mueller appears to be building a permanent investigatory empire staffed by Democrats. He has to know that the reason he was hired was to carry out a political hit on Trump and, by extension, on the GOP. Dropping off fringe cases gives the illusion that he’s being even-handed and obscures his actual objective: locking down a Potemkin “obstruction” case so he can give Rosenstein a report that would support impeachment.