With the news on Wednesday night that special counsel Robert Mueller is investigating President Trump for possible obstruction of justice, the Right has exploded with outrage. That outrage was led by Newt Gingrich:
Muelleris now clearly the ti[p of the deep state spear aimed at destroying or at a minimum undermining and crippling the Trump presidency.— Newt Gingrich (@newtgingrich) June 15, 2017
But President Trump himself chimed in:
They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice— Donald J. Trump (@realDonaldTrump) June 15, 2017
You are witnessing the single greatest WITCH HUNT in American political history - led by some very bad and conflicted people! #MAGA— Donald J. Trump (@realDonaldTrump) June 15, 2017
Now, it’s not surprising that Mueller is investigating obstruction. Former FBI director James Comey testified that he believed Mueller would investigate obstruction a week ago. And it’s actually unclear what Mueller would be investigating on the criminal side other than obstruction — as Andrew McCarthy pointed out yesterday at National Review, the Trump-Russia collusion investigation isn’t a criminal investigation but a counterintelligence one:
If [Rod] Rosenstein had been following the regulation, he would never have appointed Mueller. The regulation calls for the DAG to identify a criminal investigation of a person or matter that the special counsel is appointed to conduct. To the contrary, Rosenstein’s appointment of Mueller cited the investigation that was described by then-FBI director Comey in his March 20 congressional testimony. As Comey made crystal clear, that investigation — the Russia investigation — is a counterintelligence investigation. It is not a criminal investigation of a person or matter.
But Rosenstein’s mention of the Trump-Russia investigation was a pretext. The real reason Mueller was appointed in the first place was because Comey leaked to the press that he had memos detailing Trump’s pressure on him over the investigation. Which means that obstruction was always Mueller’s basic mandate.
With that said, we now have the bizarre but not unusual spectacle of an investigation into obstruction without any evidence of an underlying crime. Trump is exactly correct that there is no evidence of Trump-Russia collusion that anyone can point to, and he’s right that the Democrats have now decided to focus on obstruction. But that’s not Mueller’s fault — Mueller was appointed specifically because of three claims:
- Trump’s Supposed Pressure On Comey And Others. Comey claimed that Trump asked him for a loyalty oath, and that Trump said he “hoped” Comey could drop the investigation into Mike Flynn. There have also been media reports that Trump asked DNI Dan Coats and NSA leader Mike Rogers if they could tell Comey to back off of Flynn.
- Trump’s Firing Of Comey. Trump then fired Comey in the most shameful possible way. Comey should have been fired long ago, but the circumstances opened the door to the possibility that he fired Comey for some nefarious reason.
- Trump EXPLAINED The Firing By Opening The Door To Obstruction. Normally, all of this would boil down to he said/he said. But Trump himself went on national television and told Lester Holt, “in fact, when I decided to just do it, I said to myself, I said, ‘you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election.’” Trump then met with the Russians the day after the firing and told them, “I faced great pressure because of Russia. That’s taken off.”
Add to that Trump’s odd insistence that he might have tape of his conversations with Comey, and you have the slight possibility of legal obstruction (slight because the legal definition of obstruction is rather specific, and Trump doesn't appear to meet it).
Now, there’s an alternative explanation here: that Trump is absolutely telling the truth, that he fired Comey out of frustration that Comey wouldn’t say publicly what he was saying privately — that Trump wasn’t under investigation — and that his superfluous slams on Comey drove Comey to a revenge play that resulted in Mueller’s appointment. It’s not unfair to blame Mueller’s team for leaking, especially since the trap is now closed — Trump can’t get out. If he thinks Mueller is unfairly targeting him over a trumped-up obstruction charge, he can’t fire him for fear of another obstruction charge, Nixon style.
All of this is likely correct. But in the end, this is largely Trump’s own fault. He could have avoided talking to Comey about Flynn. He could have explained everything clearly the minute he fired Comey. He could have fired Comey in a normal way. He could have just transitioned him out. He could have shut his mouth after firing Comey. He could have done a thousand things that wouldn’t have landed him in this predicament.
So Trump is right that this is a witch hunt. And he’s right that there’s no underlying crime, at least based on the evidence we’ve seen. The big problem is that Trump insisted on putting on a witch’s hat and dancing around the fire shouting incantations while maintaining, correctly, that witches aren’t real.