By David French
Friday, June 16, 2017
Before we dive in to the tangled and only partially revealed web of facts and allegations surrounding Robert Mueller’s investigation of Donald Trump, allow me to make two things clear. First, at present, I do not believe that sufficient evidence exists to credibly claim that the president has obstructed justice. Second, I agree with my colleague Andrew McCarthy’s assessment that it is entirely plausible (maybe even probable) that Trump fired James Comey not to stop or obstruct any investigation, but rather because Comey wouldn’t say in public what he’d admittedly said behind closed doors — that Trump wasn’t being personally investigated for colluding with Russia. My beliefs, however, are based on partial information — on only those facts that are in the public domain.
In reality, Trump isn’t out of the woods, not by a long shot, and he has to understand that his fate depends not just on the things that happened before, but also on his self-discipline going forward. Even if he is entirely innocent of collusion with Russia, and even if he had absolutely nothing to do with any wrongdoing by aides such as Michael Flynn, Paul Manafort, or Carter Page, he could ultimately destroy his own presidency. Here’s how.
First, as I’ve written before, it’s common for investigators to indict or convict the targets of their investigations for misconduct committed during the investigation, rather than for the alleged crimes that sparked the initial inquiries. Scooter Libby and Martha Stewart are perhaps the two most recent examples. Libby was convicted of obstructing justice and lying to the FBI during the investigation of the “Plame affair” — the leak of Valerie Plame’s CIA identity to the media. No one was ever convicted for the underlying leak. Stewart was found guilty of obstructing an investigation into a stock sale. She was never convicted of actual securities fraud.
This means that federal investigations are extraordinarily perilous affairs. There are good reasons why our nation criminalizes obstruction of justice — we don’t want citizens actively impeding law enforcement. At the same time, prosecutors can be overzealous in their attempt to secure convictions and can lay numerous investigatory traps for unwary defendants. Give prosecutors room and reason to run, and they will very often chase down their prey.
And that brings us to the next reason why Trump is still in jeopardy. There is already enough evidence to justify rigorous further inquiry. Prosecutors have their room and reason to run. Just as it’s plausible (maybe even probable) that Trump fired Comey because Comey wouldn’t say to the public what he’d said to Congress — that Trump wasn’t under personal investigation — it’s also plausible that Trump’s intentions were more nefarious.
The chain of events is damaging. There now exists sworn testimony that Trump asked Comey for personal loyalty and asked Comey to drop a criminal investigation of Michael Flynn. After Comey didn’t comply with any of these requests, Trump fired him and then misled the public as to the reason for the termination. These requests are far more problematic than the request to publicly state that Trump wasn’t under personal investigation. Both of them — when combined with the termination and shifting explanations — raise alarms for anyone concerned about the rule of law.
While that chain of events hardly convicts Trump, it creates a clear roadmap for an obstruction claim. It’s a skeleton of a case that would make virtually any prosecutor wonder if he could put meat on those legal bones, and the mere fact that his defenders can presently put forth a plausible lawful explanation for his actions doesn’t exonerate Trump. Defense arguments collapse all the time when exposed to rigorous scrutiny.
Thus, the investigation is (allegedly) underway. Diligent investigators are likely looking for evidence of corrupt intent. What were Trump’s private statements? What did he say to other government officials? Has he taken any other action to impede the investigation? Is there any internal correspondence reflecting the president’s thinking or motivations? It is entirely possible (perhaps even probable) that an investigation will turn up nothing more or nothing less than a firing out of frustration, not a corrupt desire to block or impede the Flynn investigation or any other ongoing proceeding subject to obstruction laws.
But there’s another alternative entirely. Unless he gains a degree of self-discipline, an enraged president could commit an act of obstruction in the future as he tries to block an investigation that’s causing an enormous amount of political and personal stress. In other words, the investigation’s not over until it’s over, and Trump’s risk remains until the investigation ends.
The president’s lawyers are doing what defense lawyers do — telling anyone who’ll listen that Trump is the victim of nothing more and nothing less than a politically motivated witch hunt, that the “deep state” has launched its “soft coup.” In so doing, they’re not just trying to discredit the investigation, they’re trying to protect the client from himself. If they can discredit the investigation and undermine the investigators, they can render Trump’s personal conduct either irrelevant or justifiable. After all, if the investigation itself is bogus, who cares what he tweets or who he fires?
However, they’re also likely begging him privately to restrain his public statements and to avoid taking any future actions that magnify the scandal. Trump’s primary firewall is political, not legal. Impeachment is a political process, though heavily influenced by legal arguments. The more he undermines himself politically, and the more he lashes out, the more danger he’s in. For example, Trump’s vow to testify under oath to refute Comey’s key claims was reckless. More than one person has walked into an FBI interview or deposition confident in his ability to explain his actions. More than one has walked out legally ruined.
Trump’s most zealous defenders are sure he’s innocent. Yet there exists sufficient evidence to investigate his conduct. Trump’s most zealous foes are sure he’s guilty. Yet there exists insufficient evidence to impeach, much less to prosecute. As the investigation proceeds, the danger is acute. Ask any honest lawyer how much he or she relishes defending a client who has a casual relationship with the truth and who won’t stop talking. Trump’s lack of discipline and his impulsive use of his considerable powers represent ticking time bombs. Only Trump can defuse himself.