Trump Tried to Fire Mueller. So What?
12 legal experts tell us what they think the special counsel will do next.
By POLITICO Magazine
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, senior lecturer at Yale’s Jackson Institute for Global Affairs.
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 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 – more than likely it would take the form of a one-line letter to Trump’s attorneys.
‘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.
Read more here: https://www.politico.com/magazine/story/2018/01/26/trump-tried-to-fire-mueller-so-what-216539
Comments
Opinion | Op-Ed Columnist: Trump Repeats Nixon’s Fateful Panic
Charles M. Blow | The New York Times
The president attacked the investigation into his wrongdoing at the most inappropriate of places and in the most indecorous of ways, saying:
“Let others spend their time dealing with the murky, small, unimportant, vicious little things. We have spent our time and will spend our time building a better world.”
Moments later, he came back to his grievances, saying that the nation should “not let ourselves be remembered only for the petty, little, indecent things that seem to obsess us at a time when the world is going by.”
That could well have been Donald Trump, but it’s NOT.
You can tell by the complexity of syntax and the absence of nicknames, charges of “fake news” and the guilt-triggered repetition of “there was no collusion.”
NO, the person speaking was Richard Nixon in 1973 at a dinner for the Japanese premier. It was at the height of the Watergate investigation. Nixon, like Trump, was trying to minimize the import of the investigation and to cast it as a personal, “vicious,” and “petty” attack. It wasn’t.
Indeed, the parallels between Trump now and Nixon then are extraordinary.
As revelations of wrongdoing multiplied, many Republican senators continued to try to protect and console Nixon.
Nixon’s hostility toward the press grew, and the press was emboldened by his aggression. As one reporter then told The Times, “The President has declared war, and the war is on.”
Nixon was fighting — and losing — his battle to keep secret White House tapes from being released. The very real possibility of a constitutional crisis loomed as Nixon signaled a desire to defy the courts on the matter, offering instead a written summary of the tapes.
Watergate special prosecutor Archibald Cox rejected the compromise and insisted that he would return to court to compel the release of the tapes.
Feeling increasingly cornered and desperate, Nixon did the unthinkable in October of 1973: He ordered the firing of Cox and the abolition of Cox’s office in what would become known as the “Saturday Night Massacre.”
On July 24, 1974, the Supreme Court ordered Nixon to turn over the tapes. In less than a week after the tapes’ release, the House Judiciary Committee approved three articles of impeachment: obstruction of justice, abuse of power and contempt of Congress.
But, the actual language here is instructive. In Article I, the committee found that Nixon had “prevented, obstructed, and impeded the administration of justice.”
In Article II, it found that he had “repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purpose of these agencies.”
And, in Article III, it found Nixon had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives,” concluding that “In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.”
It is hard to read all of this, based simply on what is publicly known and excluding what special counsel Robert Mueller may know, without concluding that we are already in the territory where a case for impeachment can credibly be made.
Of course, these are different times.
The Republican Party is so infected with Trumpism, so fevered in its defense of him, so completely compromised by its alignment with him, that its members are not placing the well-being of the nation and fidelity to the Constitution first and foremost.
But even during the Nixon presidency, Republicans didn’t feel compelled to act until they were jolted out of inaction by the unassailable proof of Nixon’s voice on tape.
It is not clear even that noise would move today’s Republicans. Trump has already been caught on tape bragging about sexually assaulting women. He was still elected, and now congressional leaders grovel at his feet and laud his leadership.
We now see Trump trying to portray an air of confidence and control, but being betrayed at every turn by his own actions, which reveal a panicked man looking to purge anyone conducting an honest investigation.
The Times’ report last week that Trump wanted to fire Mueller only underscores this. That move would have brought us right back to Nixon’s firing of Cox.
This is no longer about Trump alone. This is now an indictment of the entire Republican Party — the elected officials and the still strident Trump voters — as well as the Trump propaganda machine at Fox News (“news” clearly being a misnomer).
These folks are engaged in an attack on the country from within. They are attacking our institutions. They are attacking the truth. All of this is being done to protect Donald Trump rather than protect the United States of America.
This inches us further away from democracy and closer to despotism. Might as well call a thing a thing.
I invite you to join me on Facebook and follow me on Twitter (@CharlesMBlow), or email me at chblow@nytimes.com.
Duncan- Everyone by now knows that Trump is a whack job. Is copy and paste all you are capable of? How about being like everyone else and have an opinion? If not just stay off the keyboard. Enough.
There’s No Way Mueller Will Indict Trump
Those hoping the special counsel will prosecute the president are engaging in fantasy.
Paul Rosenzweig | The Atlantic
The latest revelations about President Trump have, once again, excited the interest of the public, leading to speculation that Special Counsel Robert Mueller may have amassed sufficient evidence to charge the president with obstruction of justice.
Trump’s attempt to fire Mueller which happened last June, but is only now being publicly reported is under this line of thinking, the final straw.
Color me deeply skeptical.
Mueller will not indict Trump for obstruction of justice or for any other crime. Period. Full stop. End of story.
Speculations to the contrary are just fantasy.
He won’t do it for the good and sufficient reason that the Department of Justice has a long-standing legal opinion that sitting presidents may not be indicted.
First issued in 1973 during the Nixon era, the policy was reaffirmed in 2000, during the Clinton era.
These rules bind all Department of Justice employees, and Mueller, in the end, is a Department of Justice employee.
More to the point, if we know anything about Mueller, we think we know that he follows the rules — all of them.
Even the ones that restrict him in ways he would prefer they not.
And if he were to choose not to follow the rules, that, in turn, would be a reasonable justification for firing him.
So … the special counsel will not indict the president.
What can Mueller do if he finds evidence of criminality involving the president?
He can and will as authorized by Department of Justice regulations file a report on his findings with the attorney general or – since Attorney General Sessions is, in this case, recused – with the deputy attorney general, Rod Rosenstein.
Rosenstein will then be faced with the important decision of whether and how to make that report public — whether to convey it to Congress or not; whether to release it publicly or not.
The regulations are so vague they say only that he “may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions” that they, in effect, give Rosenstein plenary discretion to do whatever he thinks is in the best interest of the country.
So, every time you read about the threat to fire Mueller, remember this — the critical actor in most future scenarios is not Mueller, but Rosenstein.
Knowing Rosenstein personally, I have high confidence that he will make what he thinks is the best decision for the country — the same may not be true of his replacement or of the replacement attorney general, should Sessions be fired.
That, of course, is why the highly dubious “secret memo” prepared by House Republicans reportedly targets Rosenstein — even though he is a Trump appointee who advocated firing Comey, Trump supporters fear he will follow the rule of law.
But what of the substance of the obstruction charge?
Are pundits right that the case against Trump is becoming stronger — even if as a legal matter the president may not be charged?
Again, color me skeptical.
Collateral cases, like those involving obstruction and perjury, are ones that involve derivative offenses, not the principal charges under investigation.
Proving them often turns on proof of intent.
You have to show that the defendant acted with the purpose of obstructing an investigation.
That means these cases tend to rise or fall on the strength of the case proving the underlying crime.
It matters very much to juries and the public that we know exactly what it is that a defendant is covering up.
If we don’t think it matters that much as many in America seem to have concluded when confronted with President Clinton’s sexual conduct or that it hasn’t been proven, then the cover up is often forgiven.
In the Trump investigation, we have yet to determine whether the campaign was involved in an underlying crime of electoral manipulation involving Russia, much less how the broader American public thinks of it.
Many, like me, see strong evidence of Russian interference in the American election system and good evidence – though less strong – that some in the Trump campaign willingly accepted this and sought to take advantage of it.
But candor compels the recognition that evidence of President Trump’s personal involvement is much thinner than, say, that of his son-in-law and other campaign staff.
All of which brings us to a final thought, admittedly far more speculative than what has gone before. Something concerns the president. That is clear. If it is not the alleged collusion with Russia, then what is it?
Wisps of information in the wind suggest a far different, deeper concern.
The president’s finances have always been suspect. Some have thought them resting on shaky foundations. Ongoing investigations have looked to his banking and investments as well as those of his closest family.
Several of the special counsel’s prosecutorial hires specialize in money-laundering cases — an odd specialty for an election fraud/computer-hacking case which, basically, is what the Russia investigation amounts to.
Perhaps, just perhaps, it is that investigation that has motivated the president’s response.
But even here one should not repose too much hope in the Mueller investigation.
Mueller will not indict the president, even for money laundering. The resolution of the current American crisis is going to be political, not criminal.
The future lies with Congress and, ultimately, the electorate, not with prosecutors and the courts.
Why it is Far Worse for Trump to Fire Rosenstein Than to Fire Mueller
Asha Rangappa | Just Security – Dec 2017
All eyes are on what Donald Trump will do, as the oracles on Twitter and the Hill have predicted that the president may fire Special Counsel Robert S. Mueller around the holidays. Trump’s lawyers have denied that he is considering such a move, and Trump himself has not directly criticized Mueller.
However, Trump has recently expressed dissatisfaction with Deputy Attorney General (DAG) Rod Rosenstein, calling him “weak” and a threat. Along with those comments, the Washington Post reports that “Trump appeared to be contemplating changes in the Justice Department’s leadership.”
In short, there’s a good chance that the guillotine is poised for Rosenstein, not for Mueller – and if so, that is cause for even greater concern for all who care about the integrity of the Russia investigation and, yes, the rule of law.
It’s important to remember that the Russia investigation existed independently of Mueller before he was appointed. In fact, the inquiry into Russia’s interference began as a counterintelligence investigation in June 2016, almost a year before Mueller even came on the scene.
Mueller was appointed as the Special Counsel in the wake of Trump’s firing of former FBI director James Comey to insulate the investigation from interference and ironically accusations of bias.
Mueller simply stepped in to an already-existing investigation and carried it forward with a team of prosecutors with greater independence but still oversight from the Justice Department.
Just as Mueller’s appointment did not “start” the Russia investigation, his removal would not “end” it either.
As I wrote following Comey’s firing, FBI investigations have a life of their own, and cannot easily be “killed”: By law, the FBI is required to investigate any potential violation of federal law to its final resolution.
Further, FBI investigations – particularly complex ones like a deep probe into Russian interference – have a propensity to expand. That is, in the course of investigating one person, or crime, additional subjects or violations of law might be uncovered. In such situations, new cases would be opened.
When we refer to “the Russia investigation,” then, we are really referring to multiple – perhaps even dozens – of cases involving many individuals. Some of these, like the charges against Paul Manafort and Rick Gates or the plea deals with George Papadopoulos and Michael Flynn, have already entered the judicial system.
Other investigative leads, like subpoenas and document requests, are undoubtedly outstanding. In short, this train has left the station, and firing Mueller won’t stop it. The FBI would be compelled to pick it up, and pursue these leads — perhaps with even greater rigor if their independence were under doubt after a Mueller firing.
Nevertheless, the FBI can only pursue its investigative efforts with the assistance of a prosecutor. Obtaining evidence, either through the criminal process or grand jury testimony, and knowing which investigative avenues to pursue to build a case requires the active participation of an attorney who can go into court and facilitate each step.
Mueller, obviously, is fulfilling that function right now. But although many people may not realize it, so is Rosenstein.
Rosenstein is effectively Mueller’s boss. Although under the Special Counsel regulations Mueller does not have to report to Rosenstein day to day, he does need to check in with the DAG three months before the end of the fiscal year with a status report on the progress of the investigation, and Rosenstein has the power to “determine whether the investigation should continue.”
Separately, Rosenstein has the power to require Mueller to “provide an explanation for any investigative or prosecutorial step,” and can prevent Mueller from pursuing any action if, in his view, he believes that it is “inappropriate or unwarranted” under departmental practices. If he does so, he must report this decision to both the Senate and House Judiciary Committees.
The fact that, six months into Mueller’s appointment, no such report has been made and Mueller continues to take significant investigative and prosecutorial steps, including, most recently, obtaining tens of thousands of transition team emails from the General Services Administration, suggests that Rosenstein is on board with the breadth, scope, and direction in which Mueller is taking the investigation.
Removing Rosenstein and replacing him with a DAG who is at the very least more sympathetic to Trump could have drastic repercussions on the investigation.
The new DAG could burden the Special Counsel with a requirement to provide an explanation for every move he makes, and then decide that they aren’t necessary or appropriate.
In fact, since Mueller is required to provide the DAG with at least three days’ notice in advance of any “significant event” in the investigation, she would have plenty of time to intervene and challenge Mueller’s actions and a less scrupulous DAG could even leak Mueller’s plans to the White House or others. A new DAG would even have the ultimate — er, ‘trump card’: She could decide at some point that the investigation should not even continue at all.
Of course, any attempt to override a decision by Mueller would need to be reported and justified to Congress. However, given the increased clamor of some GOP members and right-leaning media outlets against the Mueller investigation, a DAG’s rationale for pushing back on Mueller’s investigation would find a receptive audience in some circles, including on the Hill.
The situation is delicate, and a DAG has a powerful platform to shift the balance of power against the investigation.
Imagine the next DAG simply expressing doubts about Mueller in testifying before the Congress, instead of the level of confidence Rosenstein expressed last week before the House Judiciary Committee.
Those are important moments in the life of this investigation, and a DAG not fully committed to the rule of law but to insulating the president and the White House from political and legal accountability could wreak havoc.
And while it’s true that any permanent replacement for the DAG position would be required to go through a Senate confirmation hearing, Rosenstein would in the meantime be replaced by someone else.
One path would involve turning next to the attorney who’s next in line at DOJ, Rachel Brand. Brand may of course continue Rosenstein’s efforts, but since she didn’t personally appoint Mueller and has implicit notice that her own job is on the line, holding as steady as Rosenstein has so far would require withstanding extraordinary pressure.
None of us truly know how a person will operate under such conditions. Other paths available to the president include finding a Senate-confirmed official somewhere in the administration – Trump would not be restricted to picking someone from DOJ – under the Federal Vacancies Reform Act, or an admittedly longer shot – but picking anyone inside or outside of government to serve as Acting DAG as a recess appointment if the Senate is out of session for 10 days in a row.
In short, the president has one move he can make in which the benefits to him might outweigh the costs. Since Rosenstein is his own political appointee, Trump has great discretion in deciding whether to remove him and can do it quickly and directly.
And by removing Rosenstein but not touching Mueller, Trump can claim that he is in fact not trying to interfere with the Russia investigation at all:
Indeed, it could be very hard to prove otherwise, which insulates him significantly from further obstruction charges. Firing Rosenstein but keeping Mueller gives the president the ultimate political and legal protection, and the crystal ball-gazers need to consider it.