The Washington PostDemocracy Dies in Darkness

Opinion The walls are closing in. And Trump’s lawyers know it.

The U.S. isn't a lawless country, so why are sitting presidents immune to prosecution? (Video: Kate Woodsome, Breanna Muir, Adriana Usero/The Washington Post)

It is now becoming inescapably clear that President Trump and his lawyers firmly believe that he’s seriously vulnerable to the charge that he obstructed justice.

While the chances that Trump will be indicted are virtually nonexistent, should Mueller conclude that Trump did commit obstruction, it’s also becoming inescapably clear that many people around Trump firmly believe that he might well be impeached for it.

This morning, Trump appeared to suggest — for the first time, according to that storehouse of collective knowledge and reasoning otherwise known as political Twitter — that he believes NBC News’s Lester Holt somehow fudged the video of Trump admitting back in May 2017 that he fired James B. Comey as FBI director over anger at the Russia investigation:

That video is right here. This sounds like the sort of claim that Trump would make to aides — remember, he privately suggested that the “Access Hollywood” tape might have been faked — but in this case, suddenly blurted out publicly. Regardless, it raises a question: Why does Trump suddenly see a need to distance himself from that interview now, more than a year after it happened?

After all, Trump and his own lawyers have repeatedly argued that Trump cannot commit obstruction of justice by definition. As that memo from Trump’s team put it, Trump is the “chief law enforcement officer,” and as such, anything he does toward the investigation “could neither constitutionally nor legally constitute obstruction,” meaning that “he could, if he wished, terminate the inquiry.” If so, firing Comey over the Russia probe would not constitute obstruction, either.

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But Trump’s lawyers have now concluded that Mueller likely does not agree with this. Politico reports that Trump has been privately lobbying GOP senators to support him if he fires Attorney General Jeff Sessions. Previously, Trump’s lawyers had advised him that this could add to an obstruction case, since he’d be doing this to install a loyalist who would protect him from the probe. But now, Politico reports, his lawyers have changed their minds:

They have come to believe, however, that if Mueller wants to build an obstruction case around Sessions, he has the fodder he needs in the form of a January 2018 New York Times report indicating that the president instructed White House counsel Don McGahn to prevent Sessions from recusing himself — and that Trump aides have talked with Mueller about the episode.
The drumbeat of presidential tweets denigrating Sessions as “weak” and calling on him to “stop this Rigged Witch Hunt right now” have also shaped the view among the president’s legal team. They have come to believe that if Mueller wants to build a case that the president has intimidated his attorney general, he can do so given the voluminous public record created by the president — and that firing Sessions won’t change much.

This dovetails with reporting that indicates Mueller has closely examined Trump’s conduct toward Sessions — conduct that already took place — as possible obstruction.

And if this is an accurate depiction of the Trump legal team’s thinking, it means the team believes that Mueller already thinks he has a strong case, based on what Mueller already knows about Trump’s designs toward Sessions, that Trump committed obstruction of justice. (Which undermines the theory that he cannot do this by definition.) Otherwise you’d think Trump’s legal team would be wary of allowing Trump to give Mueller more fodder by firing his attorney general.

Meanwhile, The Post reports that Trump advisers and allies worry that the White House isn’t prepared for the legal onslaught that could hit Trump next year, if Democrats take the House. And one of their main worries is impeachment:

Trump attorney Rudolph W. Giuliani said he and the president have discussed the possibility that special counsel Robert S. Mueller III will issue a damning report to Congress.
“We’ve talked a lot about impeachment at different times,” Giuliani said. “It’s the only thing that hangs out there. They can’t [criminally] charge him.”

But Trump’s advisers and allies fear he is too sanguine about Republicans keeping the lower chamber:

One source of growing anxiety among Trump allies is the worry that the president and some senior White House officials are not anxious enough. Although Trump sometimes talks about impeachment with his advisers, in other moments, he gets mad that “the i-word,” as he calls it, is raised, according to his associates. …
White House aides, including deputy chief of staff Johnny ­DeStefano and political director Bill Stepien, have tried to ratchet down Trump’s expectations for the elections, saying that projections look grim in the House.
Some of Trump’s advisers, including recently departed White House legislative affairs director Marc Short, have said that Democrats winning the House could help the president’s reelection chances in 2020 if they overplay their hand going after Trump, as Republicans did in Clinton’s second term.
Trump has so far not accepted that argument, often saying that Republicans are going to keep the House, according to people familiar with the talks.

Put this all together, and here’s what you get. Trump’s own lawyers believe that Mueller thinks he has already got enough for a strong obstruction case. While there won’t be any indictment, they believe Mueller will issue a damning report to Congress, and given their own fears about obstruction, that (in their view) will likely be what makes the report potentially so damaging — helping to supply grounds for impeachment.

Trump may sense the rising likelihood of this as well, which might be why he’s suddenly distancing himself from the Holt interview. But even if so, while Trump has talked about impeachment with his advisers, they don’t believe he is sufficiently mindful of the danger all of this poses.

How does this end? All of it perhaps makes it more likely that Trump will fire Sessions. If Mueller already has enough for an obstruction case, and putting in a new attorney general could perhaps limit what Mueller investigates further or what he puts into his report, then why not? Even if so, it’s hard to see how that would derail the case for impeachment — it might add to it.

Provided, that is, that Democrats take back the House. But what if that does not happen? Then what?