Is the tweet suggesting Attorney General Jeff Sessions shut down the Mueller investigation, in itself, obstruction of justice? That is what Rep. Adam B. Schiff (Calif.), the ranking Democrat on the House Intelligence Committee, and other Democrats have asserted. As a legal matter, however, it is far from clear that the tweet, in and of itself, is obstruction.
“Had Trump directed a recused AG to terminate an investigation into his conduct and the conduct of those around him in private, we would almost surely deem it a criminal act,” says Joyce White Vance, a former federal prosecutor. “He should not get a pass because he has either the brashness or the foolishness to do this in public.”
Laurence H. Tribe, a constitutional scholar and Supreme Court advocate, likewise cautions that “what Trump has said about Sessions isn’t equivalent to telling the attorney general ‘You’re fired unless you direct your deputy discharge Mueller by close of business today.’ ”
White House press secretary Sarah Huckabee Sanders, as is her wont, tried to give the president wiggle room to protect him against self-incrimination. She insisted the president’s tweets are an “opinion” — but not an order. Former White House counsel Norman Eisen tells me that while “this is not a formal legal order through official channels, it is much more than a mere opinion. That is because Trump has made sure it will come to the attorney general’s attention, that message comes from the AG’s superior, and it certainly calls on the AG to act.” He adds, “Shockingly, the act called for is an illegal one, since Sessions [is] forbidden under federal ethics law from doing what Trump wants. ”
So Trump’s tweet itself might be just on the safe side of obstruction. But what does it show? It shows a man rattled by the trial of his former campaign chairman who did considerable business with Kremlin and now is facing a full unveiling of his finances and possible conviction for serious crimes. That, like the prosecution of former national security adviser Michael T. Flynn for lying about phone calls with the Russians during the transition, has been something Trump has tried frantically to avoid. And it is the desire to avoid scrutiny of his associates — for what they might reveal about him or his campaign — that is at the heart of a possible obstruction charge.
Each time Trump communicates his desire to impede, end or decapitate (by firing Mueller or Deputy Attorney General Rod J. Rosenstein), he gives prosecutors one more piece of evidence to fit into the portrait they are painting of a besieged president trying to avoid embarrassing disclosures. Whether those are Trump’s own finances, the facts surrounding the Trump Tower meeting or other Russia-related activities, we do not know. For now, however, we know Trump was desperate to throw Mueller off the scent.
Obstruction is a crime of intent, and even a failed attempt to obstruct justice is prosecutable, Tribe notes, under 18 U.S.C. § 1503 , which provides that “whoever corruptly . . . endeavors to influence, obstruct, or impede, the due administration of justice, shall be (guilty of an offense).” Tribe explains: “At the very least, therefore, even if one buys the distinction between ‘should’ and more imperative language, this was an ‘endeavor’ to undercut the investigation by pressuring Sessions to take the illegal and unethical action of re-inserting himself into the investigation and shutting down Mueller’s probe.”
Now that an actual trial is underway, multiple indictments have been obtained and plea deals have been struck, there is no question that Trump is seeking to shut down a set of active, valid cases. No longer do we need to debate whether interfering with an FBI investigation can be obstruction; we now have the president of the United States trying to shut down the trial (one of two) of his former campaign chairman. If Mueller cannot make out an obstruction claim now, I’d be very surprised.