I say that because we may be thinking of the question of whether Trump has in fact obstructed justice in too narrow a way. If we’re asking “Will Trump be indicted for, and convicted of, this crime?” then the answer is probably no. While scholars are not united on this question, many believe that a sitting president can’t be indicted, and it’s highly unlikely that special counsel Robert S. Mueller III will issue an indictment for Trump, no matter what the investigation produces.
The better question is: What has Trump done to obstruct this investigation? The answer to that question is that he has done an extraordinary amount.
Let’s begin with this article in today’s New York Times from Michael S. Schmidt and Julie Hirschfeld Davis, which discusses a meeting Sessions and Trump had in March 2017, after Sessions recused himself from the Russia investigation on the advice of Justice Department ethics officials. That step was completely appropriate. Not only was Sessions a high-ranking member of the Trump campaign, which was being investigated, he also misled Congress about his contacts with Russian officials. Here’s what happened in that meeting:
When they met, Mr. Trump was ready to talk — but not about the travel ban. His grievance was with Mr. Sessions: The president objected to his decision to recuse himself from the Russia investigation. Mr. Trump, who had told aides that he needed a loyalist overseeing the inquiry, berated Mr. Sessions and told him he should reverse his decision, an unusual and potentially inappropriate request.Mr. Sessions refused.
This left Trump enraged, and he has perseverated on it ever since, periodically proclaiming publicly that he would never have hired Sessions if he knew he would recuse himself from this investigation. (He did it again this morning.)
Now let me point to one more part of this story:
When Mr. Trump learned of the recusal, he asked advisers whether the decision could be reversed, according to people briefed on the matter. Told no, Mr. Trump argued that Eric H. Holder Jr., President Barack Obama’s first attorney general, would never have recused himself from a case that threatened to tarnish Mr. Obama. The president said he expected the same loyalty from Mr. Sessions.
We’ve had reports to this effect before. According to a January New York Times story, when Sessions decided to recuse himself, “the president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him.”
We can’t mistake this for anything other than what it is. Think about it this way: What exactly is it that Trump wanted Sessions to do that Deputy Attorney General Rod J. Rosenstein, who is currently overseeing the investigation, couldn’t do or has not done? The answer is clear. Trump is angry that Sessions recused himself because he expects his attorney general to quash any investigation into his own misconduct and that of his campaign. There is simply no legitimate reason for him to be displeased with Sessions’s recusal.
Imagine what a normal president would say in this situation. He’d say, “It doesn’t matter whether the special counsel’s investigation is overseen by the attorney general or the deputy attorney general. Once the investigation is completed and all the facts are laid out, it will be clear that I’m innocent.”
Trump, on the other hand, is livid that his attorney general is not there to protect him from the special counsel. He’s not even trying to hide the fact that he would rather have a crony in place who would shut the whole thing down.
We have to understand this in the context of the many actions Trump has taken to hinder and obstruct the investigation into the Russia scandal:
- According to former FBI director James B. Comey’s sworn testimony and contemporaneous notes, at the end of an Oval Office meeting the day after he fired national security adviser Michael Flynn, Trump ordered everyone else from the room, then asked Comey to lay off the investigation of Flynn, saying “I hope you can see your way clear to letting this go, to letting Flynn go.” Flynn has since pleaded guilty to lying to the FBI and is cooperating with the Mueller investigation.
- “I just fired the head of the F.B.I. He was crazy, a real nut job,” Trump reportedly told the Russian ambassador and foreign minister in an Oval Office visit. “I faced great pressure because of Russia. That’s taken off.”
- The next day, Trump admitted on national television that, “when I decided to just do it [fire Comey], I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story.'”
- Trump made separate requests to Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers to make public statements proclaiming that there was no collusion between the Trump campaign and Russia. They both refused.
- Trump made separate requests to Sen. Richard Burr, the chairman of the Senate Intelligence Committee; Sen. Roy Blunt, another member of the committee; and Senate Majority Leader Mitch McConnell to end the committee’s investigation of the Russia scandal.
- When news broke in June 2017 that a year earlier Trump’s son, son-in-law and campaign chairman had met in Trump Tower with a group of Russians whom they hoped were in possession of dirt on Hillary Clinton obtained by the Russian government, President Trump personally dictated a misleading statement to be released to the press, claiming falsely that the meeting had nothing to do with the campaign but was just about the adoption of Russian orphans.
We can speculate on whether a jury would look at this pattern of behavior (and whatever else he may have done that hasn’t yet come to light) and find Trump guilty of obstruction of justice. But there’s no question that Trump has repeatedly taken completely inappropriate actions that have no purpose other than to hinder the Russia investigation.
By his own admission, he fired the FBI director to stop the investigation. He enlisted other government officials in an attempt to hinder it. He has said both privately and publicly that he expects his attorney general to protect him from that investigation — not to do his job, not to serve the interests of justice, not to strictly adhere to the law and the department’s ethical codes, but to protect Trump.
There is simply no argument left over whether Trump obstructed justice. He did. The only things left to determine are how far that effort went and what we’re going to do about it.