Painter and Eisen on the whole obstruction thing.
Now there are reports that President Trump ordered the firing of Mr. Mueller last June. This is yet more evidence that the president is determined to block the investigation at all costs. It suggests Mr. Trump has something to hide about himself, his family or another associate. Therefore it goes to an element in any obstruction case, that of “corrupt intent” — whether a person’s actions were motivated by an improper purpose. An effort to fire Mr. Mueller would be particularly incriminating because it replicates the key moment when mere disgruntlement may have soured into illegality: Mr. Trump’s termination of Mr. Comey.
All of this is persuasive, but not conclusive, proof of obstruction. Mr. Mueller is surely aware of additional evidence, of aggravating or mitigating facts, that the public does not know. He has most likely not made up his mind, because the most critical element of the analysis is still missing: Mr. Mueller’s sitting down with the president, looking Mr. Trump in the eye and judging his words, demeanor and credibility as the president answers questions about the matter, including his intent. (Those questions would most likely be posed by one of the other prosecutors on the team, so Mr. Mueller can observe and judge.)
I wonder how tricky that is. I wonder if Trump is both stupid enough and egomaniacal enough to have the demeanor of innocence, simply because of his unshakable love of himself. Ya know? Trump is bottomlessly conceited, and to all appearances incapable of ever seeing himself as in the wrong.
But then again he comes across as crooked as fuck anyway, so maybe that won’t make any difference.
Then Mr. Mueller would make his decision about the obstruction of justice question under the criminal law after he concludes his investigation. He could elect to refer the matter to Congress, which has the power to decide that same question by applying its own separate standards under the impeachment clause of the Constitution.
Whether that happens remains to be seen. We do know this: The argument that President Trump has the absolute right to fire Mr. Mueller is just plain wrong.
It had better be. If he’s free to fire anyone who investigates him, he can do anything he wants to, and that’s called a dictatorship.
Mr. McGahn knows that if Mr. Mueller or any subsequent prosecutor were to determine that such conduct did amount to obstruction of justice, he would be complicit if he relayed these shocking orders from Mr. Trump to the Justice Department, as Mr. Trump apparently requested him to do. He need only talk with one of his predecessors as White House counsel, John Dean, about the consequences of getting sucked into a president’s efforts to obstruct justice.
Even if a White House lawyer were not prosecuted and sent to prison for obstruction of justice, he could still lose his bar license for assisting a client in a crime. Indeed, Mr. Trump himself might accuse Mr. McGahn of malpractice after the fact for failing to stop him.
Yet Mr. McGahn’s forbearance in this instance offers only limited comfort to lawmakers and the public. He is reported to have pressured Mr. Sessions not to recuse himself, despite a clear legal duty to do so. He may have played a role in the misleading statement from Mr. Trump about the Trump Tower meeting. Moreover, Mr. McGahn has failed to prevent, or perhaps even enabled, other unethical or illegal behavior in the White House, from Kellyanne Conway’s promotion of Ivanka Trump’s clothing on television to high-ranking administration officials’ financial conflicts of interest.
In short, he’s crooked. He’s Trump’s bought lawyer.
Finally, these latest revelations make us even more worried that President Trump will in fact fire Robert Mueller, particularly as the investigation closes in on White House officials and perhaps members of the Trump family. Mr. Mueller gave Mr. Flynn a very favorable plea deal in exchange for cooperation against someone more senior, and that must mean those around the president or the president himself.
When that shoe drops, or is about to, Mr. Mueller’s job will again be at risk. It is critically important that Congress act now to pass legislation protecting the special counsel from being fired before his investigation and the ensuing prosecutions are concluded.
Will they? It’s not looking likely.
