Trump’s lawyer, John Dowd, just gave an interview to Axios in which he floated the idea that the president, by definition, cannot obstruct justice, “because he is the chief law enforcement officer” and “has every right to express his view of any case.”
Trump’s lawyers had previously argued to Mueller that Trump did not obstruct justice (a possibility that Mueller is examining) when he fired former FBI director James B. Comey out of anger over the Russia probe, because he has the constitutional authority to hire and fire as he sees fit. Experts have challenged this claim, noting that even if Trump has this authority, he cannot exercise it for a corrupt purpose. Regardless, this would not have to be a crime to constitute an impeachable offense.
But in any event, Dowd’s new argument appears to go farther than that. It doesn’t address just Trump’s previous conduct toward Comey. The notion that Trump can “express his view of any case” could theoretically be applicable as a justification for any future actions Trump might take toward the investigation.
“Dowd is basically arguing that as the chief law enforcement officer, Trump has the authority to block investigations into himself, his allies and into his friends, and nothing he does can be construed as obstruction of justice,” Matthew Miller, a former Justice Department spokesman, told me this morning. “The logical extension of all this is that Trump can try to remove Mueller and it would be entirely legitimate.”
Let’s put this in the context of the events of the past several days. After it was announced that former national security adviser Michael Flynn has made a plea deal with Mueller in which he’s providing information about the Trump transition team’s various activities, Trump unleashed an extraordinary stream of tweets blasting the FBI as “in tatters.” He hammered the FBI for failing to sufficiently investigate Hillary Clinton under Comey and vowed to bring the FBI “back to greatness.”
In saying all these things, Trump is amplifying a narrative that his media allies have banged away at in recent weeks, one designed to goad Trump into going full authoritarian. The basic idea is that Mueller and the FBI are themselves corrupt — Clinton is not being investigated, but Trump’s campaign is — so the only way to set things right is to close down Mueller’s probe. If Miller is correct, then Dowd’s new quote may telegraph an argument that might be used to justify this, and Trump’s vow to bring the FBI “back to greatness” can also be read as a hint at this possibility.
Meanwhile, in defending himself, Trump also appeared to reveal by tweet that he originally had to fire Flynn because he had “lied to” the FBI, which immediately raised further questions about potential obstruction. This suggests Trump knew this even as he demanded that Comey drop the investigation into Flynn, as Comey testified that Trump did, though Dowd subsequently claimed this isn’t what Trump meant. At the same time, Flynn’s cooperation appears to be shedding light on the possibility that Trump’s top advisers, or even Trump himself, directed him to contact Russia before he was president. This could constitute undermining then-current U.S. foreign policy in ways that some legal experts suggest could have been illegal or could form the grounds for impeachment (not that Republicans would agree, naturally).
The bottom line: Trump’s legal and/or political exposure — and that of his top advisers — appears to have grown. And given Trump’s response, so too has the possibility that he will try to put a stop to the investigation. We don’t know whether Trump will go this route. But the point is that the groundwork for this course of action has been laid, should he choose it. Trump’s lawyers have said this isn’t being discussed. But Dowd should now be pressed to elaborate on his new quote in this context.
It is plausible that Trump will hesitate before trying to remove Mueller, if only out of self-interest. But for this to be the case, Trump needs to be persuaded that there will be a serious downside to doing so. As The Post recently reported, Trump has “internalized the belief that he can largely act with impunity,” in part because no matter what he does, “Republican leaders largely stand by him.”
Multiple GOP lawmakers have said Mueller’s probe should be allowed to proceed. But that isn’t enough. We should all do our part to ensure that they are pressed on whether Trump will face actual consequences if he tries to prevent that from happening.
* BIG HURDLE REMAINS FOR GOP TAX PLAN: Today Republicans will try to reconcile the Senate and House versions of the tax plan, and a key sticking point is how to treat the millions of businesses known as “pass-throughs.” The Post reports:
The two bills take markedly different approaches to the taxation of pass-through business income, with the House bill providing a much larger tax cut. But it could be impossible to adopt the House approach to the issue, given the rigid budget rules under which the bill must be passed in the Senate. The House bill, multiple aides said, would not pass muster under those rules because it would increase deficits in the long run, beyond the coming decade. The Senate-passed bill contains multiple compromises and phase-outs of certain tax cuts to limit its impact on the deficit.
House conservatives will probably have to accept slightly smaller tax cuts for the rich (to whom the vast majority of pass-through income flows). The horror!
* POLLS ARE MIXED IN ALABAMA: A Post-Schar School poll released over the weekend found Democrat Doug Jones leading Roy Moore among likely voters in Alabama, 50 percent to 47 percent. But a CBS News poll found Moore up among likely voters, 49 percent to 43 percent.
Note these finding from the CBS News poll: “Jones does not appear to be drawing many crossover Republicans, which he would almost surely need in order to gain ground.” And: “Among all registered voters, the contest is even.” That confirms the turnout will be decisive.
* BEWARE THE POLLING IN ALABAMA: Politico’s Steven Shepard has a must-read explaining why we should exercise extra caution about the polling on this race:
There are no established, in-state polling institutions or dominant regional media outlets [in Alabama]. Since it’s not typically a politically competitive state, outside pollsters don’t have much experience in Alabama either. … There’s no playbook for polling voters in a special election — in which historical turnout patterns aren’t always predictive — let alone one under these unique circumstances. That leaves pollsters … mostly guessing about what turnout might look like.
Stick to the polling averages and hope for the best. Either way, it’s likely to be very close and will all turn on what the electorate ends up looking like.
* ALABAMA BUSINESS COMMUNITY STAYS AWAY FROM MOORE: The Wall Street Journal reports that many Alabama business leaders are staying neutral out of fear that he will damage the state’s reputation:
Some business leaders worry that controversies engulfing Mr. Moore … will damage the state’s image as Alabama tries to attract major businesses … Mr. Jones is still facing a steep challenge even among disaffected businessmen because … Mr. Moore is supporting the tax cuts and regulatory relief that are top industry priorities.
They still won’t back former prosecutor Jones over a lawless bigot and accused teen-targeting sexual predator because the former doesn’t support tax cuts and deregulation.
* MCCONNELL SOFTENS ON MOORE: On ABC’s “This Week,” Senate Majority Leader Mitch McConnell was asked directly whether he still believes that Moore does not belong in the Senate, and he replied: “I’m going to let the people of Alabama make the call.”
Asked repeatedly whether he’d take action against Moore if he wins, McConnell said he’d leave it to the ethics committee to decide what to do. This is how they’ll handle it: Hey, the voters have decided. And they’ll keep the seat, without a big, messy battle to expel Moore.
* A VERY DANGEROUS COINCIDENCE: E.J. Dionne Jr. points out that the confluence of the GOP tax bill nearing passage, just as Flynn has decided to cooperate with Mueller, creates a dangerous situation:
Don’t count on Republican politicians abandoning Trump quickly now that their tax victory is in sight. They and the president have a lot more in common than either side wants to admit. The primary loyalty they share is not to God or country or republican virtue. It is to the private accumulation of money, and this is a bond not easily broken.
Now that the GOP dream of tax cuts is within reach, it is less likely that Republicans will take seriously the mounting evidence against Trump. Why would this change once 2018 starts?
* TRUMP OFFICIALLY ENDORSES ROY MOORE: Good morning, Mr. President:
Democrats refusal to give even one vote for massive Tax Cuts is why we need Republican Roy Moore to win in Alabama. We need his vote on stopping crime, illegal immigration, Border Wall, Military, Pro Life, V.A., Judges 2nd Amendment and more. No to Jones, a Pelosi/Schumer Puppet!— Donald J. Trump (@realDonaldTrump) December 4, 2017
Yep — support the lawless bigot and alleged child molester because he’ll cut taxes bigly on the rich and corporations while telling you that undocumented immigrants are your real problem. The perfect expression of Trump populism!