Thursday’s explosive New York Times story that President Donald Trump ordered the firing of special counsel Robert Mueller last June renewed the public’s focus on the obstruction of justice investigation against Trump, which will soon culminate in Trump’s interview by Mueller. The case against Trump has grown stronger in recent months, and it now appears likely that Mueller will conclude that Trump obstructed justice.
That has not always been true. On June 8, 2017, soon after former FBI director James Comey testified before the Senate Intelligence Committee, I told the New York Times, “Based only on what we know now in public, a reasonable prosecutor might bring this case against an ordinary person, but a prudent prosecutor would want more facts before bringing this case against a president.”
I was cautious about whether Mueller could prove that Trump obstructed justice because the president clearly had the power to fire Comey if he chose to do so. Even assuming that a jury—or the United States Senate, which would serve as the jury in an impeachment proceeding—believed Comey’s testimony, they could nonetheless conclude that Trump did not act “corruptly” in asking Comey to drop the Flynn investigation or in firing Comey, as the law requires.
Impeding or influencing an FBI investigation is a crime only if it is done with “corrupt” intent—in other words, the intent to wrongfully impede the administration of justice. In my experience, proving a defendant’s intent without direct evidence—that is, without statements by the defendant that directly reveal his or her intent—is challenging.
One could argue that Trump provided direct evidence when he told NBC’s Lester Holt that he was going to fire Comey regardless of the recommendations of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and that he was thinking of “this Russia thing” when he did so. But Trump quickly followed up that comment by indicating that he thought the investigation was bogus, and his defense to obstruction could be that he genuinely believed the Russia investigation was meritless.
Before bringing a case, prosecutors anticipate defenses like that one and gather evidence to rebut potential defenses. We have since learned of very substantial additional evidence that would rebut that defense, or a defense that Trump didn’t understand the consequences of firing Comey. While that evidence is indirect, Mueller could argue that we can infer Trump’s intent from that evidence, which is how prosecutors typically prove a defendant’s intent.
For example, last spring, Trump reportedly asked Sessions if the government could drop the criminal case against former Sheriff Joseph Arpaio, whom Trump later pardoned. According to the Washington Post, Sessions told Trump that would be inappropriate, and Trump decided to let the case go to trial and pardon Arpaio if he was convicted. Mueller could argue that this suggests that Trump is serious about killing investigations of his friends. A pattern of behavior is always a stronger indicator of intent than a one-off action.
We also learned that, according to the New York Times, in March—two months before Trump fired Comey—he ordered White House Counsel Don McGahn to stop Sessions from recusing himself. When McGahn was unsuccessful, Trump reportedly erupted in anger, saying he needed Sessions to “protect him” and “safeguard” him, as he believed other attorneys general had done for other presidents. These are very odd statements by Trump that Mueller could argue indicate that Trump wanted Sessions to impede or even end the Russia investigation to “protect him.”
Then, according to the New York Times, Trump erupted at Sessions after Mueller was appointed, accusing him of “disloyalty” for recusing himself from the Russia investigation at the recommendation of career Justice Department staff. On its face, it corroborates Comey’s testimony that Trump wanted “loyalty” from him. It is also a very odd reaction by Trump to recusal, which Sessions was advised to do and is a routine practice when there is a potential conflict of interest or an appearance of a conflict. Mueller could argue that Trump’s intense anger was due to his fear of the investigation and desire to impede it.
After Comey was fired and was temporarily replaced by Deputy FBI Director Andrew McCabe, Trump asked McCabe whom he voted for in the presidential election, according to the Washington Post, and complained to staffers that McCabe was a Democrat, once again corroborating Comey’s testimony regarding loyalty. Trump then pushed Sessions to pressure new FBI Director Christopher Wray to fire McCabe, which caused Wray to threaten to resign, according to Axios. McCabe told Congress that Comey recounted his conversations with Trump, including the “loyalty” conversation, which makes him a witness in the obstruction case. Mueller could use Trump’s desire for loyalty from McCabe, and later desire to remove McCabe, as evidence that Trump wanted to undermine the Russia investigation.
Then, according to Politico, in August, Trump called Senator Thom Tillis and told him that he was unhappy with the legislation he was working on with Democratic Senator Chris Coons that was designed to protect Mueller from an attempt by Trump to fire him. That legislation—and other legislation designed to protect Mueller—stalled in the Senate after Senator Majority Leader Mitch McConnell said that there was no “need” to protect Mueller.
As we learned Thursday in the New York Times, there was indeed a need to protect Mueller back in June, when Trump ordered the firing of special counsel due to “conflicts of interest” that were not actually conflicts and appear to be thinly veiled excuses to get rid of Mueller. Trump also considered firing Rosenstein and replacing him with Associate Attorney General Rachel Brand, the No. 3 Justice Department official, so she could oversee Mueller. According to the Times, Trump has wavered for months about whether he wants to fire Mueller, which is an “omnipresent concern among his legal team and close aides.”
This is an important piece of evidence because it comes after Trump fired Comey and learned that he was under investigation for obstruction of justice. It should be easy for Mueller to prove that Trump read or viewed legal analysis discussing the possibility that Trump obstructed justice by firing Comey. Trump’s desire to fire Mueller despite knowing that firing a law enforcement official overseeing the Russia investigation could raise obstruction concerns is strong evidence that Trump’s intent was to obstruct the investigation. The excuses offered by Trump also bolster Mueller’s case, because they indicate that the president realized that firing Mueller to impede the investigation would be perceived as wrongful.
All of this, taken together, greatly strengthens the case that Trump had “corrupt” intent when he fired Comey. That said, there is still a lot we don’t know. For example, according to the New York Times, Mueller has an early draft of a letter drafted by Trump aide Stephen Miller at Trump’s direction offering an unvarnished view of Trump’s thinking regarding the firing of Comey. The Times and Post also reported that McGahn expressed concerns to Trump about the letter, and the Times noted that McGahn gave Miller a marked-up copy of the letter, highlighting sections that he wanted removed.
McGahn’s advice to Trump will be crucial. Did the White House counsel tell Trump that firing Comey could put him in legal jeopardy? That would strengthen Mueller’s case. Or did McGahn express concerns only about the political fallout? That might weaken Mueller’s case, because Trump could argue that he sought his lawyer’s advice and his lawyer did not advise him that firing Comey could put him in legal jeopardy. That’s called an “advice of counsel” defense. McGahn’s advice, along with the advice of others to Trump, could be the most important evidence in the obstruction investigation.
While we don’t know all of the evidence, Thursday’s revelation suggests it is likely Mueller will conclude that Trump obstructed justice. Some conservative legal commentators have argued that Trump’s constitutional authority to fire personnel and end investigations is so vast that he cannot obstruct justice as a legal matter. Most legal scholars find that argument unpersuasive, but it is an academic point—not one that is decisive—because Mueller has pressed forward in investigating the firing of Comey as obstruction of justice and the power of Congress to impeach Trump goes beyond the text of any statute.
Even if Mueller concludes that he could prove beyond a reasonable doubt in court that Trump was guilty of obstructing justice, I believe he will ultimately present the matter to Congress for potential impeachment instead. After all, according to the New York Times, former independent counsel Kenneth Starr possessed a legal memo concluding that he had the power to indict former President Bill Clinton but did not do so, ultimately choosing to present the matter to Congress. I think Mueller would likely do the same thing, because it’s the more prudential approach given that it’s an open legal question whether a sitting president can be indicted.
One issue that is rarely discussed is how Mueller would make such a report to Congress, because he has no direct authority to do so. He could do so via Rosenstein, who has repeatedly defended the special counsel’s investigation. He could also present evidence to the grand jury, which could issue its own report, a rare practice that has occasionally occurred in high-profile cases. It’s hard to believe Mueller couldn’t find a way to present a report of his findings if he wanted to do so.
Whether a Republican Congress would take action against Trump, regardless of Mueller’s conclusions, is anyone’s guess. But Thursday’s news made impeachment proceedings against Trump more likely. Ultimately the president’s performance in his upcoming interview with Mueller could prove decisive. Trump has repeatedly demonstrated a lack of discipline when questioned, and Mueller has a lot to work with. If Trump provides the special counsel with direct evidence of his intent when firing Comey, he could ensure that Mueller will conclude he obstructed justice, leaving his fate to Congress.
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