On Wednesday, the wave of news around the Mueller investigation seemed to crest with a bevy of headlines about how the special counsel was now targeting President Trump himself for an interview. That interview would presumably cover Trump’s firing of former FBI director James Comey, his alleged request to Comey to let now-indicted former National Security Advisor Mike Flynn go, and his pressure on various officials ranging from Attorney General Jeff Sesssions to deputy FBI director Andrew McCabe with regard to the Trump-Russia collusion investigation.
According to The Washington Post, Mueller wants to interview Trump in particular about the firings of Flynn and Comey. Sessions and Comey have both met with the special counsel investigators. One source told the Post that Mueller “has also expressed interest in Trump’s efforts to remove Sessions as attorney general or pressure him into quitting…The person said the special counsel was seeking to determine whether there was a ‘pattern’ of behavior by the president.”
So, here’s the “pattern” of behavior that apparently bothers Mueller.
According to Comey, Trump asked Comey for his “loyalty” during a private dinner at the White House in January. Then, in February, Trump fired Flynn; immediately thereafter, Comey says Trump asked him to let Flynn go. In May, Trump asked McCabe how he voted in the last election cycle. Throughout this period, Trump harassed Attorney General Jeff Sessions on Twitter, presumably for recusing himself from the Russia investigation.
Presumably, Mueller is looking to pin Trump down on possible obstruction charges — the notion that Trump was attempting to manipulate his own law enforcement agencies to cover for Flynn or himself. That’s why he wants to interview Trump: to set a perjury trap for the president, or to get Trump to admit to something that would indict him.
Democrats have been suggesting that this is Mueller’s ultimate angle here for months. Back in December, Sen. Dianne Feinstein (D-CA) stated on Meet The Press:
I think what we’re beginning to see is the putting together of a case of obstruction of justice. I think we see this in the indictments — the four indictments and pleas that have just taken place — in some of the comments that are being made. I see it in the hyper-frenetic attitude of the White House, the comments every day, the continual tweets, and I see it most importantly in what happened with the firing of [former FBI] Director Comey, and it is my belief that that is directly because he did not agree to lift the cloud of the Russia investigation. That's obstruction of Justice.
Trump didn’t help his case when he tweeted in December that he fired Flynn because “he lied to the Vice President and the FBI,” strongly implying that he knew Flynn was guilty of something when he asked Comey to let him go.
Now, is there a legal case for obstruction of justice even if all of this is true? Not really. Here’s what I wrote about it in June 2017:
There are three separate federal laws, as The New York Times points out, that could deal with this situation. None clearly does.
1. 18 USC 1503: This “omnibus” clause covers “corruptly or… by any threatening letter or communication influenc[ing], or imped[ing] or endeavor[ing[ to influence, obstruct, or impede, the due administration of justice.” But the clause also requires a pending judicial proceeding – and as far as we are all aware, there is none. Furthermore, the Supreme Court is quite exacting on the application of this law – a prosecutor would need to prove that Trump’s conduct materially impeded the investigation, which even Comey has said didn’t happen.
2. 18 USC 1512(c): This provision of law covers anyone who “obstructs, influences, or impedes an official proceeding, or attempts to do so.” It is not clear that an FBI investigation is an “official proceeding,” and proving intent is difficult in any case. And it’s not enough to show intent to violate the subsection – you have to take a “substantial step toward the accomplishment of that goal.”
3. 18 USC 1519: This provision covers destroying evidence related to a federal investigation. There are no accusations that Trump destroyed evidence. Unless Trump had tapes and destroyed them, the statue simply doesn’t apply.
So what is Mueller doing?
He’s setting the groundwork for what could become the worst political fight of our lifetime: an impeachment move started by Democrats over supposed non-illegal “obstruction” of an investigation that found no underlying crime other than lying to the FBI. Trump will be tempted to pardon those who lied to the FBI; Republicans will surely defend Trump. Meanwhile, the media will have a field day suggesting that Trump is a criminal and that the Republicans are covering for his manipulation of the FBI and Department of Justice.
Nowhere in any of this will Russian collusion be a factor.
So an investigation that began with promises that Trump had worked hand-in-glove with Vladimir Putin to subvert an American election will boil down to Mike Flynn lying to the FBI about talking with the Russians about foreign policy during the transition, George Papadopoulos lying to the FBI about meeting with a rumored Russian source and then being stymied by the upper levels of the Trump campaign, and Paul Manafort and Rick Gates for issues unrelated to the campaign — and then Trump firing Comey and Flynn and saying stuff to Comey and McCabe and Sessions.
That’s weak tea. But weak tea may make for the most controversy, given that actual evidence of Russian collusion would unite Americans against Trump.