Since the story over President Trump’s actually trying to fire Robert Mueller erupted, cries of “obstruction of justice” are literally ringing from the rooftops. But even if Trump did order the White House Counsel Donald McGahn II to fire Mueller, does that actually constitute obstruction? Well, sorry to lawyer out, but the answer is a resounding, “maybe.” However, it certainly makes any obstruction case that Mueller might be working up against Trump even easier to prove because it shows further evidence of the president ‘s intent.
There are fourteen federal statutes that criminalize actions, any one of which constitutes obstruction of justice. Of those fourteen, three have the potential to apply here. The one most likely to be relevant to a Mueller firing would be 18 U.S.C. 1512 – Tampering with a witness, victim, or an informant. It prohibits:
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so…”
18 U.S. C 1503 – Influencing or injuring officer or juror generally, or 18 U.S. C § 1505 – Obstruction of proceedings before departments, agencies, and committees, could certainly be used as well. Respectively, they criminalize:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede…”
“Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand…”
Notice something common in those three statutes? They all punish attempt, and they all require intent.
The Bad News for President Trump: Attempt
The obstruction statutes prohibit a person from trying to impede justice – even if that try were unsuccessful. That means that if enough evidence were introduced to prove that Trump clearly tried to interfere with Mueller’s investigation, he’d be guilty of obstruction. An attempt to destroy a document, or an endeavor to influence the investigation could absolutely be grounds for an obstruction charge. There’s no requirement that Trump’s effort succeed or even be likely to succeed – just that its failure be caused by someone other than Trump himself.
Thursday’s news – that Trump ordered the firing of the man charged with investigating Russian collusion—could very well be enough to satisfy statutory requirements. Justice and Security Analyst Matthew Miller and former DOJ official observed the danger the revelation poses to Trump:
Important to remember you don’t have to actually succeed in obstructing justice to have committed a crime. Just “endeavoring” to is enough.
— Matthew Miller (@matthewamiller) January 26, 2018
While reports of the president having attempted to instigate his own Saturday Night Massacre could never be helpful to him, calling an obstruction case a “sure thing” is far from accurate. Any prosecutor would have to prove that whatever action Trump may have taken was things done “corruptly” or with an “improper purpose.” And that gets tricky, because generally, one person cannot testify about why another person did something. The only person qualified to testify about what is going on in the brain of Donald Trump is Trump himself. And such is the difficulty with prosecuting any case that requires a specific intent on the part of the perpetrator.
Of course, in many criminal cases, prosecutors present evidence of how a defendant acted, and what circumstances surrounded the crime, and jurors will infer a defendant’s state of mind based on that contextual information. While such an inference might require a bit of a leap for a set of facts open to interpretation, inferring intent would be pretty easy in the case of ordering Mueller terminated. Even the most stalwart Trump-supporter would likely conclude that if Trump ordered Mueller’s firing, he did so to get Mueller off his back.
This claim that Trump wanted to interfere in the investigation is further bolstered when you lay it side by side to his firing of former FBI Director James Comey which he said in an NBC interview was done because of “You Know, the Russia thing.” (his official letter claims it was due to his handling of other matters)
“I do think we are moving towards having sufficient evidence to satisfy the obstruction standard,”Former White House Ethics Czar Norm Eisen said on CNN Thursday, adding that he still thinks Mueller needs to get an explanation from Trump about all of this.
Because of the predictability of Trump’s interference with the Mueller investigation, legal experts have been considering the consequences of a Mueller firing for some time. In a study titled, “Why Trump Can’t (Easily) Remove Mueller—and What Happens If He Tries,” published by a group of renowned Constitutional and legal-ethical scholars, even a “lawful” firing of Mueller was described as, “ freighted with uncertainty” that could “bring significant legal and political consequences.” The group (and likely, the Office of the White House Counsel) concluded that those consequences would be prohibitive:
“…removing Special Counsel Mueller with the intent to impede the Russia investigation would amount to a doubling down on the obstructive conduct in which Trump has already engaged. The case that a firing of Mueller would constitute obstruction of justice would be especially strong now that a grand jury has returned indictments against Paul Manafort, the president’s former campaign chairman, and Manafort’s former deputy, Rick Gates.”
Although a conviction (or even a prosecution) of President Trump for obstruction of justice is not a sure thing, there can be little doubt that tonight’s reporting, if confirmed, would move the needle forward on such an event. Without doubt, President Trump will claim total immunity from such an indictment (a claim we at Law & Crime have already analyzed as being a likely loser).
Lastly, if McGahn confirms the report that Trump ordered Mueller’s termination, impeachment may prove an easy alternative to prosecution. The study discussed above concluded that the Nixon parallel would simply be too much for the Trump presidency to withstand. Speaking hypothetically just a few short months ago, the group ended its inquiry stating:
“We expect (and would certainly call for) similar consequences if President Trump decides to emulate Nixon.”