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.
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