Robert Mueller’s team is surely reaching the same conclusion, which means it is highly likely that Mueller will refer an obstruction case to Congress for further action. He could also seek to indict co-conspirators, and he could name the president himself in an indictment. No wonder Trump has resisted an interview with the special counsel. It’s even less likely to happen after Cohen’s plea — not to mention the virtually simultaneous conviction of Paul Manafort won by Mueller and his team Tuesday afternoon.
There is, of course, a difference between the public record and what Mueller and his colleagues have uncovered in their investigation. Most likely, they have much more information, and Cohen’s lawyer has suggested that he also has things to say about alleged collusion by Trump and his campaign with Russia. But even without subpoena power, it’s easy to discern significant evidence supporting the elements of obstruction of justice — an obstructive act undertaken with corrupt intent and having a connection to a grand jury or congressional proceeding. Public reports, open court testimony and our near-century of collective criminal law experience allow us to forecast what the Mueller report is likely to contain.
We begin with the president’s demand of loyalty last year from then-FBI Director James B. Comey, his request that Comey “see [his] way clear” to letting national security adviser Michael Flynn go, his termination of Comey and his statements encouraging others to end the investigations. All this is very similar to conduct that has supported previous federal obstruction cases. For example, in U.S. v. Lustyik, an FBI agent was guilty of obstructing justice because he tried to persuade others not to indict his friend and business partner.
Trump has attempted to block Attorney General Jeff Sessions from recusing himself from the Russia investigation, despite his clear legal duty to do so; asked Sessions to reverse his decision; twice ordered Mueller fired; dictated a false account for a key witness, his son Donald Trump Jr., of the June 9, 2016, Trump Tower meeting between campaign and Russian representatives; and repeatedly and publicly attacked Mueller and key witnesses. Trump has also continued disputing the underlying Russian attack, despite extensive evidence .
These are powerful indications of obstruction of justice under the relevant criminal statutes. So Mueller will probably conclude that Trump’s actions potentially constituted obstruction under one or more legal theories, each of which would be a crime: attempts to influence, impede or obstruct actual or foreseeable congressional and grand jury proceedings; misleading conduct or attempts to threaten, intimidate and corruptly persuade witnesses; and potential coordination or conspiracy with other individuals to obstruct justice.
Just recently, we saw a very clear and public example of potential witness intimidation. Trump stripped the security clearance of former CIA director John Brennan and told journalists that he did so because Brennan was among those he held responsible for the Russia investigation. White House press secretary Sarah Huckabee Sanders publicly listed nine other people connected to the investigation whose security clearances were under review, and further reporting indicates that orders have already been drawn up to strip a number of them of their clearances. All are potential witnesses in the election interference or obstruction investigation, or both.
Such retaliatory exercises of executive power against witnesses are potential indicators of witness tampering — that is, attempts to threaten or intimidate. Courts have routinely held that even suggestively threatening statements are sufficient to bring witness-intimidation charges. For example, in U.S. v. Freeman , a police officer’s statements to a witness such as, “I hear you’ve been talking and the feds are around” and “keep the lip zipped” were found to be in violation of the obstruction laws, in part because his status as a police officer added to the threatening nature of his words. Evidence showing the corrupt intent necessary for criminal liability would have to be further developed, but Trump’s comments that “these people led” the Russia investigation (the “rigged witch hunt”) may support such a finding.
The president’s legal team and others have advanced weak defenses that Mueller is unlikely to give much credence. The fact that a president may have exercised his constitutional authority to remove subordinate officers is no defense if the action was done with a corrupt intent to block an investigation. The notion that a public official cannot be charged with obstructing justice for actions within his or her public authority finds no support in the annals of American law. Just as officials can be charged with bribery if they take money for official actions that would otherwise be proper, they can be charged with obstruction if they take otherwise proper actions to corruptly impede an investigation.
If Mueller determines that Trump obstructed justice, he may follow the lead of past special prosecutors who have deferred to Congress’s primary jurisdiction over matters involving the president; House leaders referred the investigations of Richard Nixon and Bill Clinton to the Judiciary Committee.
But deference to Congress’s primary jurisdiction does not mean that the criminal justice system has no role to play in an obstruction case. Other White House officials besides the president may have helped obstruct. Last weekend, the New York Times reported that White House counsel Donald McGahn was so afraid of getting tangled up in liability that he bent over backward to cooperate with Mueller. Indicting White House officials on conspiracy charges would be entirely appropriate if the facts bore out such a claim — and even if a case against the president were referred to Congress. Trump could be named as an unindicted co-conspirator in that event.
And if Congress declines to take up an obstruction case against the president after Mueller refers one, the special counsel may leave open the possibility of indicting him at a later time.
Trump has resisted an interview with Mueller despite months of negotiations. It does not appear likely that he will grant one. Mueller may seek to compel his testimony via a grand jury subpoena, or he may simply file his report. In either event, it is increasingly clear that if the evidence is as strong as it seems (let alone whatever evidence Mueller has that we aren’t yet privy to), there will be multiple avenues for seeking accountability. All the technical defenses of the president’s legal team will not prevent the truth from coming out.
This article is based on research initially conducted for a Brookings Institution report.