The saga of Donald Trump and Robert Mueller took a dramatic new turn on Thursday night when the New York Times first reported that the president had ordered the special counsel to be fired in June last year. But Mueller’s investigation has ground on since then, after President Trump backed down when White House Counsel Don McGahn threatened to resign.
It’s the latest twist in a slow-drip Russia investigation that has led to two indictments, two plea deals and interviews with more than 20 White House employees. The White House has already turned at least 20,000 pages of documents, and the Trump campaign more than 1.4 million. So what does this new development mean? We asked legal experts whether they think Mueller now has enough evidence to pursue obstruction of justice charges against the president, or if a different outcome is more likely. Here is what they told us.—Taylor Gee
‘Mueller has a higher bar to prove corrupt intent than in normal cases’
Asha Rangappa, associate dean at Yale Law School.
At this point, there is certainly a compelling pattern of evidence for Mueller to piece together to demonstrate that President Trump had “corrupt intent” when he fired James Comey. To wit: We know that the president asked Comey for a “loyalty oath,” that he asked the then-FBI director to drop the Flynn investigation, that he asked White House Counsel Don McGahn to prevent Attorney General Jeff Sessions’ recusal, and that he tried to lean on the heads of the CIA and NSA to intervene with Comey as well. His desire to fire Mueller, even if not acted upon, adds yet another (perhaps still unhammered) nail to the obstruction case.
Still, it would be wise for Mueller to wait until the conclusion of the Russia probe before pursuing obstruction charges against the president (either formally or through Congress). This is because the act of firing Comey is entangled enough with his executive power to hire and fire officers that Mueller has a higher bar to prove corrupt intent than in normal cases.
If, in the course of the Russia probe, Mueller uncovers unethical or illegal activity by the president—whether via direct collusion with the Russians or through ancillary financial crimes, for example—his case for obstruction would be stronger. This is because there would be a clearer case that President Trump had a personal stake in making sure the Russia investigation went away. Evidence of misconduct (illegal or not) found in the underlying investigation would make it much more difficult for Congress to ignore or dismiss obstruction charges against the president, and would make an actual criminal case airtight.
‘Trump himself had a more demonstrably central a role in the emerging pattern of obstruction here than Nixon did in Watergate’
Laurence Tribe, professor of constitutional law at Harvard Law School.
The president’s foiled effort to rid himself of the Mueller investigation in June 2017, and his now-exposed invention of patently phony excuses for doing so—much as he had invented fake reasons for firing Comey before admitting his actual Russia-related reason on national television—eliminates any possible defense that Trump was clueless about the relevant rules. Together with the plethora of other evidence bearing on Trump’s corrupt motives in making these (and at least a dozen other) moves to derail or undermine the pending investigation, this attempt to pull off an even worse version of Nixon’s Saturday Night Massacre leaves no reasonable doubt that Trump’s motives throughout have been as illicit as if Putin had directly bribed him to attempt to end the investigation into the way Russia helped Trump become president. That makes pursuing obstruction of justice charges against the president, whether by criminal indictment or by referral to the House Judiciary Committee or both, not just appropriate but obligatory.
Despite all the casual talk about Mueller’s supposed inability to seek a criminal indictment against a sitting president, the case for that conclusion rests on no precedent and weak legal analysis. Naming Trump as an unindicted co-conspirator (as the special prosecutor had done with Nixon in prosecuting his underlings) seems insufficient, given the increasingly clear evidence that Trump himself had a more demonstrably central a role in the emerging pattern of obstruction here than Nixon did in Watergate.
‘Imagine the implications of probing the motives behind a constitutionally authorized act’
Alan Dershowitz, emeritus professor of law at Harvard University.
A president cannot be accused of obstruction for merely exercising his constitutional authority regardless of his motive. Imagine the implications of probing the motives behind a constitutionally authorized act. Why did Obama not veto the anti-Israel U.N. Security Council resolution? Many commentators believe he was motivated by a desire to get even with Prime Minister Benjamin Netanyahu. Why did Bill Clinton pardon Marc Rich? Are some presidential actions motivated by potential book sales? Future speech fees? Partisan advantage? Friendships? Payback? It would create a dangerous precedent for a prosecutor to be empowered to criminalize a president’s motives.
‘Mueller won’t make up his mind until he interviews Trump’
Norm Eisen, senior fellow at the Brookings Institution.
There was already substantial evidence of obstruction, and the evidence that Trump wanted to remove Mueller and yet again interfere with the investigation provides more of it. It is also noteworthy that the reasons offered were implausible, such as the fact that Mueller broke away from one of Trump’s golf clubs once, years ago. That is not a disabling conflict! All of this goes to the key element of obstruction: corrupt intent. Despite the mounting evidence, Mueller himself won’t make up his mind until he interviews Trump. And if the special counsel, who has much more evidence than what is public, has likely not yet made up his mind, we outside the investigation certainly cannot yet do so.
That said, obstruction cases have been brought—and won—on less evidence than what we already know here. In terms of other outcomes, because the Department of Justice’s Office of Legal Counsel has concluded (incorrectly in my view) that a sitting president cannot be indicted, Mueller is not likely to go that route. He may treat the president as an unindicted co-conspirator; or seek to communicate the grand jury’s findings regarding obstruction to Congress; or prepare an impeachment report to Congress. Or he may exonerate the president (though certainly not as Comey exonerated Hillary Clinton with an elaborate public presentation; it is more likely to take the form of a one-line letter to Trump’s attorneys).
‘Smells like obstruction of justice, but a mere whiff of impropriety does not necessarily form a solid criminal case’
Jennifer Taub, professor of law at Vermont Law School.
Placed in context, this reported order by Trump to have Mueller fired sure smells like obstruction of justice. But a mere whiff of impropriety does not necessarily form a solid criminal case. As outsiders, we simply do not know the entirety of evidence the special counsel possesses, some of which may be exculpatory. We also don’t know whether he has proof of some other felonies that go more directly to collusion (coordination between the Trump campaign and the Russian government) and not just to the cover-up.
Should he have sufficient evidence, Mueller is legally authorized to prosecute anyone who intentionally interferes with his investigation. The relevant regulations state that the special counsel has the “authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the special counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence and intimidation of witnesses.” Whether a sitting president may be indicted is a matter of hot debate among some constitutional law scholars. Because there has been no Supreme Court decision on the matter, however, it would be wrong to assert that the grand jury cannot or will not indict the president, should the evidence lead them in that direction.
Also, perhaps if the grand jury here finds evidence of a conspiracy to obstruct justice, under 18 U.S.C. § 371, Conspiracy to commit offense or to defraud United States, President Trump might be named in an indictment as an unindicted co-conspirator. As former federal prosecutor Joyce Vance reminded us on “Morning Joe,” during the Watergate investigation the grand jury named President Richard Nixon as an unindicted co-conspirator in the Watergate burglary. This was revealed in June of 1974, and the president, likely facing impeachment, resigned in August.
‘Mueller must still prove corrupt intent’
Laurie Levenson, professor of law at Loyola Law School.
While interesting, I don’t think the Times’ revelations necessarily show that there is enough evidence at this point to seek an obstruction of justice charge against the president. To prove obstruction of justice, Mueller must still prove corrupt intent. We can anticipate that Trump will argue that he was not acting out of corrupt intent, but out of a mistaken belief that Mueller was somehow disqualified by alleged conflicts of interest. Of course, if interviews of those involved show that Trump’s claims were just a pretext, then that evidence might help prove Mueller’s case, but just the move to have Mueller fired might not be enough by itself.
‘All signs point to Mueller concluding in his report that the president engaged in obstruction of justice’
Bradley Moss, partner at the Washington, D.C., law office of Mark S. Zaid, P.C.
To be clear from the outset, it is highly unlikely that Mueller will try and bring criminal charges against President Trump, no matter what he has found. Mueller is, in the end, a dedicated institutionalist much in the same manner as his former colleague, James Comey. Both men will generally view preserving the integrity and stability of the government and the constitutional system itself as more important than pursuing a novel tactical move such as indicting a sitting president. Although there are some constitutional scholars who argue a president can be indicted, odds are that if Mueller believes there is a legal basis for a charge of obstruction of justice (or any other charge) he will outline that finding in his report to Deputy Attorney General Rod Rosenstein and defer to Congress with respect to possible impeachment proceedings.
What Mueller seems to be pursuing—and what Thursday’s report reinforces—is that President Trump engaged in a deliberate and repeated pattern of behavior constituting obstruction of justice. One or two particular incidents could easily be dismissed as political inexperience, and Mueller is no doubt cognizant of that reality. What he is fleshing out is whether the president’s repeated actions, taken as a whole, reflect a corrupt intent to improperly influence or impede the Russia investigation. He has several pieces of information that we already know about, such as the president’s attempt to secure a pledge of loyalty from Comey, his attempt to get Comey to back off on former national security adviser Michael Flynn (including trying to secure assistance from various agency heads to pressure Comey), his decision to fire Comey, his effort to fire Mueller, and his involvement in crafting a misleading White House statement regarding Donald Trump, Jr.’s meeting with a Russian lawyer in Trump Tower in 2016.
It goes without saying that this is only what the public knows so far, and that Mueller’s team likely is aware of additional relevant information that the special counsel will want to raise with the president in the “clash of the titans” interview that will most likely occur in the coming weeks. At this point, though, all signs point to Mueller concluding in his report that the president engaged in obstruction of justice and that Congress should consider potential action in a manner consistent with its own constitutional authorities and duties.
‘It is not a federal crime, let alone an impeachable offense’
Josh Blackman, constitutional law professor at the South Texas College of Law in Houston.
The question here is if the president could be punished for something he didn’t do. That is, could the fact that Trump sought Mueller’s termination, but changed course after his White House counsel threatened to resign, strengthen the case for obstruction of justice? The answer is no.
The president is surrounded by lawyers for a reason: to prevent him from making mistakes. Likewise, Article II, Section 2 of the Constitution affords the president the power to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” This provision ensures that the president can seek counsel from Senate-confirmed members of his administration, and lawyers in particular, about important legal questions.
Trump wanted to fire Mueller, and told his staff to do so, but after a threatened resignation, the president withdrew the order. This episode was not a public act, but an internal debate. It is not a federal crime, let alone an impeachable offense. Throughout American history, lawyers have consistently talked presidents out of making terrible decisions. We generally never hear about such stories, but the current White House is a sieve, where attorney-client communications spill out. In any event, we know that the process worked. Much to my pleasant surprise, President Trump—despite his mercurial bluster—consistently (but not always) listens to his lawyers.
The decision not to fire Mueller cannot form the basis of obstruction of justice. Instead, the special counsel’s investigation is limited to Trump’s decision to fire Comey. As I’ve explained on the Lawfare blog in a three–part series, this decision cannot give rise to charges of obstruction of justice.
‘Let’s focus on the act as well as the intent’
Robert Weisberg, professor at Stanford Law School.
Because the Supreme Court has done little to clarify the meaning of “corrupt intent” in the obstruction laws, categorical predictions are folly. But if Trump ordered that Mueller be fired, he has certainly strengthened a possible obstruction charge. We need to know what Trump knew or surmised Mueller was planning to do or likely to do. But let’s focus on the act as well as the intent. Some have already argued that any such “order” is legally meaningless because Trump never did fire Mueller. But 18 U.S.C. section 1503 speaks of “endeavor” to obstruct—in effect, it can be viewed as an attempt statute. The meaning of “endeavor” was supposedly clarified—but, alas, not very well—in U.S. v. Aguilar in 1995. One way to read that case is that the act at issue can be obstructive if, when it was done, there was a reasonably foreseeable chance that it would hit its alleged target—the proceeding that the person wanted to thwart. Making the case here is possible—just speculate on what would have happened to the Russia investigation (which can be viewed as a “proceeding”). But, as with almost everything else about a possible obstruction charge for firing either Comey or Mueller (or maybe pardoning someone targeted by Mueller), it’s all a matter of guessing how courts would interpret vague doctrinal terms in circumstances that have never (quite) arisen in the courts.
One other question—to whom was the order originally made? If it was McGahn, was the order protected by attorney-client privilege (or executive privilege)? Well, who leaked the information? If the leaker was an unfaithful aide who was covered by the privilege, McGahn and Trump could still refuse to discuss the conversation—although the leak itself is already out there.
‘It’s much more likely that Mueller’s primary goal is simply to spell out all the facts’
Marty Lederman, professor at the Georgetown University Law Center.
It’s exceedingly unlikely the special counsel will indict the president for at least two reasons.
First, the Office of Legal Counsel has already concluded that bringing such an indictment during the president’s term would be unconstitutional. I’m not sure that conclusion was correct, but I also don’t think it matters: Mueller is unlikely to act in a way inconsistent with the OLC view. Indeed, it’s not clear he has the power to do so and, in any event, Deputy Attorney General Rod Rosenstein probably would not permit such an indictment. (I suppose it’s slightly more plausible that Mueller might ask a grand jury to name Trump as an unindicted co-conspirator in a case against others—but I doubt that’s in the cards, either.)
Second, even in a hypothetical prosecution after Trump leaves office, proof of obstruction of justice would require, at a minimum, proof beyond a reasonable doubt that Trump’s efforts to scuttle the Russia investigation have been motivated by the inappropriate and implausible, but not culpable, reasons he has freely offered—such as his view that there’s nothing to investigate, or that the investigation is a political “witch hunt”—or were, instead, a function of a corrupt intent to advance his personal or political interests. It’s hard to imagine putting such a question, requiring the untangling of a president’s motives, to a criminal jury, and I’d be surprised if Mueller and Rosenstein concluded it would be appropriate to do so, even in a post-presidency trial.
Because criminal indictment of the president is so unlikely, I doubt that Mueller is focused on whether Trump has technically violated any criminal obstruction statute. Nothing of practical importance turns on that question. It’s much more likely that Mueller’s primary goal is simply to spell out all the facts for Congress, and the public, in a comprehensive, objective report, a principal focus of which will be on the need to prevent further Russian efforts to affect U.S. elections.
It is entirely possible (although not certain) that Mueller’s report will paint a very unflattering picture of the president’s conduct respecting the investigation—perhaps even one that demonstrates violations of his constitutional obligations. Once Congress and the American public learn from Mueller exactly what the president has done, it will then be up to the House and Senate, and the voters, to decide what to make of it—and for purposes of those actors’ decisions, it is, again, not especially relevant whether the specific elements of any criminal statute are or are not satisfied, because those are not the standards for the more important, and solemn, decisions that the legislature and the electorate will be entrusted to make.
‘It is unlikely that there will be a single piece of smoking gun evidence’
Alex Whiting, professor at Harvard Law School.
In an obstruction case against President Trump, it is unlikely that there will be a single piece of smoking-gun evidence. Rather, the case will be built on an accumulation of separate pieces of evidence that, taken together, will establish whether Trump had a corrupt intent to obstruct justice when he asked Comey to go easy on Flynn, and when he later fired Comey. Why? Because intent is almost always proved circumstantially. The only way to figure out what was inside Trump’s head when he acted is to look at what he said at the time, how he acted before and after, and his pattern of behavior with respect to the ongoing investigation of his election campaign.
The news that President Trump subsequently ordered Mueller’s firing—and backed down only after McGahn threatened to resign—adds considerably to an already very developed picture. Even before this news broke, there was compelling evidence that Trump in fact acted with a corrupt purpose when he took steps to derail the Flynn and Russia investigations. Remember: He cleared the room before speaking to Comey about Flynn, and he initially lied about his reasons for firing Comey. Those are not the actions of someone who believes he is properly exercising his power. Now we learn that even after the firestorm that followed Comey’s firing, Trump again tried to stop the investigation of his campaign, offering transparently specious reasons why Mueller had to be fired. Here then emerges a pattern of behavior: repeated attempts to stop the investigation accompanied by lies and false statements. What will Congress do when all of this evidence drops in its lap? Will they find some way to avoid drawing the obvious conclusions?
‘It’s possible McGahn realized that he had no choice in the matter’
Kathleen Clark, professor of law at Washington University in St. Louis.
The Times reports that McGahn balked at the prospect of directing the Justice Department to fire Mueller. It’s possible McGahn realized that he had no choice in the matter. The rules of professional conduct prohibit a lawyer from knowingly assisting a client in a crime. If McGahn knew that firing Mueller would constitute obstruction of justice, then assisting Trump in that firing could have exposed the White House counsel to criminal liability as well as professional discipline.
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