Obstruction of Justice

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.

  Renato Mariotti @ Politico

Of course I don't know Mueller's mind, but I'd say it's a certainty that he's concluded Trump obstructed justice, and a more accurate statement would be that he's now likely to have all his ducks in a row to prove it.

[In early June] 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.

[...]

Trump [indicated] that he thought the investigation was bogus, and his defense to obstruction could be that he genuinely believed the Russia investigation was meritless.

Mueller may not have had it sewn down tightly at that point, and Trump may well have been able to say that he thought the investigation had no merit, but I don't see how that would have permitted him to fire Comey without obstructing justice, since there was an actual investigation going on. This article is written by an attorney, however, and I'm not one.

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.

[...]

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.

[...]

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.

And McGahn himself may be in bigger trouble if he actually advised Trump poorly. The leak published in the New York Times that McGahn threatened to quit over something he perceived as troublesome doesn't sound like someone worried about the political fallout, but the legal. He did pull some questionable stunts like pretending Sally Yates didn't inform him of Flynn's liability and trying to help pressure Sessions into not recusing himself, and I'm guessing at this point, he's worried about his own future.  So he'll be trying to back himself out of that corner, not likely to try to defend Trump further.

One more thing that indicates Trump's intent to stop the investigation and desire to fire Mueller is the phone call he made to Republican Senator Thom Tillis back in early August. Tillis was working with a Democratic senator on a bill to protect Mueller, since it was known then that Trump wanted to fire him. After that phone call, the bill languished. It could be that Tillis convinced Trump (and was convinced that he had convinced him) to drop any idea of firing Mueller. It could be that something entirely different happened. I'm assuming Mueller's team will have talked with Tillis.

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.

I would be very surprised if the Republicans currently in the House chose to impeach. We shall see.

...but hey, do what you want...you will anyway.