The Washington PostDemocracy Dies in Darkness

Opinion Trump ordered the firing of Mueller. That makes it more likely he obstructed justice.

Opinion | If President Trump fires the bane of his legal troubles, he could spark a legal and constitutional crisis. (Video: Adriana Usero/The Washington Post)
Placeholder while article actions load


President Trump is kinda sorta denying the New York Times’ explosive report that he ordered the firing of special counsel Robert S. Mueller III last June and backed down only when the White House counsel threatened to quit. Trump vaguely dismissed the report as “fake news,” but as some analysts pointed out, if Trump were really denying it, you’d hear that message a lot more forcefully.

But there is a lot of information in the Times report — and other reports that have followed it — in addition to the precise question of whether Trump issued a blanket order for Mueller’s firing. And that information, taken along with the top-line scoop, sheds new light on how Mueller will likely seek to build an obstruction-of-justice case against Trump and why success at building such a case is now more likely.

For instance, the Times reports two other crucial details: First, that the White House counsel, Donald McGahn, worried that firing Mueller “would incite more questions about whether the White House was trying to obstruct the Russia investigation.” Second, that Trump has “wavered for months” about firing Mueller and that this is an “omnipresent concern” among people around Trump, meaning it is a concern right now.

Follow Greg Sargent's opinionsFollow

This means Trump was very likely informed by his lawyer that firing Mueller would make him more legally vulnerable to the charge that he obstructed justice in his other previous efforts to impede the investigation into his campaign’s possible conspiracy with Russian sabotage of our election. Yet, having likely been so informed, Trump still continues to mull firing him.

The question of whether Trump obstructed justice turns on whether he acted with corrupt intent in trying to impede the investigation. Former prosecutor Renato Mariotti told me in an interview today that those additional facts in the Times piece could help Mueller try to establish that intent.

Trump is acting macho by saying he'll testify under oath in the Russia probe, says Ruth Marcus. Won't the real test come down to whether he tells the truth? (Video: The Washington Post)

“It’s hard to conceive of McGahn not having a conversation with Trump regarding the potential legal consequences of firing Mueller,” Mariotti said. The fact that Trump continues to consider that route may mean he continues to bring it up with the people around him. Indeed, CNN recently reported that Trump continues to rage in private about the probe and that his lawyers have talked him down by telling him he’ll be cleared soon. Thus, any more recent conversations about whether to fire Mueller could be of interest, Mariotti said.

“Mueller would try to establish that … no matter how many times the president was warned that there was potential legal liability, he persisted nonetheless in trying to derail the investigation,” Mariotti said. “It would show the intensity of his determination to do that. A prosecutor would argue that this shows what his intent was at an earlier point,” say, when he fired former FBI director James B. Comey.

And indeed, there are many such “earlier points” that either demonstrate direct efforts to impede the probe or show him desiring to do so. Trump reportedly demanded Comey’s loyalty, then pressed him to drop the probe into his former national security adviser, then fired Comey presumably because he’d refused to accede to those demands. Trump had previously urged top intelligence officials to get Comey to back off. Trump unsuccessfully demanded that McGahn persuade his attorney general not to recuse himself from the Russia probe, then raged that Jeff Sessions had failed to protect him. Trump helped his son Donald Trump Jr. draft a statement falsifying the rationale for his meeting to seek dirt on Hillary Clinton from the Russian government. And now he appears to have ordered Mueller’s firing.

The role of Bannon and Priebus 

The Post reports another important detail: Trump’s anger at Mueller grew so severe last spring that former advisers Stephen K. Bannon and Reince Priebus grew “incredibly concerned” that he would fire Mueller and got others to intervene with the president. Mariotti says Mueller will try to establish whether Bannon and Priebus held private conversations with Trump that further shed light on the intent behind his desire to fire Mueller — and, by extension, his intent in trying to derail the investigation all along.

“Bannon and Priebus are a walking tape recorder,” Mariotti said. “What Trump said [to them] will be used by Mueller to build that case as to his intent.”

To be sure, there is a whole other set of questions around whether a president can be held criminally liable for obstruction of justice at all. But that aside, Mueller could still establish a pattern of serious or potentially impeachable misconduct. Whether or not it’s likely that Republicans will act on that, it now seems more likely that such a pattern will be established.

* DEMOCRATS RENEW DEMAND FOR MUELLER PROTECTION: The Post reports that Democrats are responding to the news by renewing their call for legislation to protect Mueller, should Trump try to remove him:

Sen. Mark R. Warner (Va.) … said in a statement that “firing the Special Counsel is a red line that the President cannot cross … all members of Congress, from both parties, have a responsibility to our Constitution and to our country to make that clear immediately.” Sen. Richard Blumenthal (Conn.) … described Trump’s attempt to oust Mueller as “remarkable and stunning … it shows the need immediately to protect the special counsel.”

Yep, Republicans will get right on that. By the way, you’d think this would renew media pressure on Republicans to take a stand on what Congress should do now to prepare for this possibility.

* SENATE IGNORES TRUMP ON IMMIGRATION: Yesterday Trump rolled out a plan that legalizes the “dreamers” in exchange for huge concessions to the nativists. But the New York Times reports that senators in both parties are ignoring that plan and negotiating a narrower one:

They hope that if it can pass the Senate with a strong bipartisan majority, it will put pressure on the House — where attempts at immigration overhauls have died in recent years — to pass the legislation as well. [That] could perhaps leave Mr. Trump with the take-it-or-leave-it decision. Just over two weeks ago, in a televised negotiating session at the White House, Mr. Trump said he would sign anything that got to him.

It will be hard to get House GOP leaders to allow a vote on a Senate bill, because anything that can pass the Senate will be automatically seen as a compromise, so the right will demand its veto.

* TRUMP CHAFES AT JOHN KELLY’S RESTRICTIONS: The Post reports that Trump regularly chafes at the restrictions that chief of staff John Kelly has tried to place on whom he talks to and what information he gets. This is fun:

One reason Trump stays in the personal residence section of the White House so late every morning — sometimes until after 10 a.m. — is because he has access to his phone and has fewer restrictions, associates say. … The chief of staff has … encouraged the president to show him tweets, though he has told others he can’t do much about them, according to White House officials.

The Post also reports that Kelly often acts as a “sounding board” while Trump “rages about the Russia investigation.” Something tells us all of this is going to get a lot worse.

* NO SUPPORT FOR CUTS TO MEDICAID, MEDICARE: With the debate set to heat up over cuts to entitlements, a new Kaiser Family Foundation poll finds that only 12 percent want to see cuts to Medicaid, and only 7 percent want to see cuts to Medicare. Note:

Overall, the majority of the public (69 percent) believe Medicaid is primarily a government health insurance program that helps people pay for health care while one-fourth (27 percent) believe it is primarily a welfare program.

The idea of work requirements for Medicaid is grounded in a view of the program as welfare, so those are encouraging numbers, given that more states will be pushing that.

* WHITE HOUSE DOCUMENTS COOPERATION WITH MUELLER: The Associated Press reports that White House lawyers have just released a document demonstrating that more than 20 White House officials have sat for interviews with Mueller:

The document … details what the White House calls its unprecedented cooperation with Robert Mueller’s investigation, including that it has turned over more than 20,000 pages of records. The president’s 2016 campaign has turned over more than 1.4 million pages.

It’s a double game: Even as Trump’s lawyers work to document his cooperation, he has privately ordered Mueller fired and is winking at outside allies portraying the probe as a Deep-State Coup.

* WHY TRUMP HATES CLEAN ENERGY: Paul Krugman notes that Trump’s new tariffs on solar panels will likely kill jobs, and puts it in the context of the administration’s multiple policies promoting dirty energy:

Why do Trump and company love dirty energy? Partly it’s about the money: what’s good for the Koch brothers may not be good for America (or the world), but it’s good for G.O.P. campaign finance. Partly it’s about blue-collar voters, who still imagine that Trump can bring back coal jobs. … it’s also partly about cultural nostalgia: Trump and others recall the heyday of fossil fuels as a golden age, forgetting how ghastly air and water pollution used to be.

It’s probably also partly grounded in the fact that weenie liberals support transitioning to clean energy, making this another way to persuade working-class whites that elites are working against them.

* AND TRUMP ALMOST APOLOGIZES FOR RETWEETING HATE VIDEOS: Trump recently retweeted far-right anti-Muslim videos, and in Davos, he addressed the matter this way:

“If you’re telling me they’re horrible racist people, I would certainly apologize if you would like me to do that.”

Note that Trump frames this as something he is grudgingly granting to his interviewer, rather than as any kind of admission about the true nature of those videos or of wrongdoing on his part.