Former White House counsel Donald McGahn, leaves the Eisenhower Executive Office building next to the White House on Aug. 30, 2018. (Jabin Botsford/The Washington Post)
Daniel Hemel is an assistant professor of law at the University of Chicago.

President Trump ordered the top White House lawyer to lie to special counsel Robert S. Mueller III. That is one difficult-to-escape conclusion of Mueller’s 448-page report, released to the public in redacted form Thursday. Telling another person to lie to investigators is obstruction of justice. So why isn’t the obstruction case against Trump open and shut?

The wrinkle is that the president did not order White House counsel Donald McGahn to lie merely to Mueller. Rather, Trump told McGahn to lie to the entire country — including Mueller. The only thing that distinguishes Trump’s order from a textbook case of obstruction is that Trump sought to include 330 million additional listeners in the lie.

Trump’s order to McGahn to carry out a coverup is the biggest bombshell in a report full of damning disclosures. Mueller’s analysis of that episode is the closest that the special counsel comes to concluding that the president committed obstruction of justice. It’s certainly one of the lowest points of a presidency that has stooped to many lows. And it should be the focal point of media coverage and congressional investigations in the coming days, weeks and months.

Obstruction of justice requires three elements: an obstructive act, a nexus to an official proceeding and a corrupt motive. Mueller’s report recounts the allegedly obstructive act in detail. In late January 2018, the New York Times revealed that Trump had ordered McGahn to fire Mueller the previous June. The Times report, according to the special counsel’s report released Thursday, is supported by “substantial evidence.”

Trump nonetheless ordered McGahn to publicly dispute the Times’s account — first relaying the message through his personal attorney, then through White House press secretary Sarah Sanders, then again through White House staff secretary Rob Porter and, finally, in a face-to-face meeting with McGahn in the Oval Office last February. Trump also told Porter to convey to McGahn that the White House counsel should write a letter “for our records” denying that the president ever ordered Mueller’s firing.

McGahn rebuffed the president every time, but that does not exonerate Trump. An unsuccessful attempt to obstruct justice is obstruction, nonetheless. Nor can Trump plausibly argue that his order to McGahn was facetious. Trump did not tell McGahn to lie just one time. Instead, he issued this instruction on four separate occasions — three times through others, once directly.

Trump’s best defense appears to be that he did not intend for McGahn to mislead Mueller but, instead, intended for McGahn to mislead the entire country. In this view, the fact that McGahn’s statements would have reached Mueller’s team was just an incidental side-effect of a gambit to deceive the American people. Mueller’s report floats this possibility: “If the President were focused solely on a press strategy,” Mueller writes, then his obstructive act might not have the necessary “nexus” to the special counsel’s inquiry.

One might call this the “lying to everyone” defense. And it’s a deeply problematic argument that is in tension with the available evidence. Most significantly, it fails to explain why Trump wanted McGahn to manufacture a fraudulent paper trail in addition to a media denial. If all of this were just a press strategy, then a statement to the press would seem to suffice.

In other instances of potential obstruction outlined in the special counsel’s report, the facts remain murky or the president could conceivably claim that his motives were not corrupt. For example, it’s unclear whether the president tacitly told his longtime attorney and fixer Michael Cohen to lie to Congress. Likewise, it’s at least arguable that Trump fired James B. Comey as FBI director because Trump thought Comey was a weak leader for the bureau — a rationale that, if genuine, would make Trump’s action entirely legal.

In the McGahn case, by contrast, the bare facts appear to be straightforward. And it’s difficult to imagine any innocuous reason for Trump to tell McGahn to lie. The one lingering question is whom exactly Trump wanted to deceive. Lying to the country is not itself a crime. But if Trump sought to mislead Mueller, then the fact that Trump misled millions more would be no defense at all.

Some might ask why any of this still matters. Mueller considered himself to be bound by Justice Department policy against the indictment of sitting presidents, so the special counsel would not have charged Trump anyway. But as Mueller’s report notes, no Justice Department policy precludes the indictment of a former president after he leaves office. The federal statute of limitations on obstruction of justice is five years, so even if the current attorney general believes that Trump has been exonerated, his successor in a subsequent administration may reach a contrary conclusion.

Members of Congress, moreover, may care whether Trump’s conduct qualifies as obstruction when considering the possibility of impeachment. And they would have a solid basis for moving forward with an impeachment bill that levels an obstruction count against the president regarding his directives to McGahn. In doing so, they would pressure the president to explain why he ordered McGahn to make a statement that both men almost certainly knew to be false. If Trump’s response is that he meant to mislead the nation and not the special counsel specifically, he should — at the very least — have to tell it to us straight.

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