Its Now Likely Mueller Thinks Trump Obstructed Justice
{Renato Mariotti is a former federal prosecutor who handled many obstruction cases. He is now a partner at Thompson Coburn LLP.}
Thursday’s explosive New York Times story that President Donald Trump ordered the firing of special counsel Robert Mueller last June renewed the public’s focus on the obstruction of justice investigation against Trump, which will soon culminate in Trump’s interview by Mueller. The case against Trump has grown stronger in recent months, and it now appears likely that Mueller will conclude that Trump obstructed justice.
That has not always been true. On June 8, 2017, soon after former FBI director James Comey testified before the Senate Intelligence Committee, I told the New York Times, “Based only on what we know now in public, a reasonable prosecutor might bring this case against an ordinary person, but a prudent prosecutor would want more facts before bringing this case against a president.”
I was cautious about whether Mueller could prove that Trump obstructed justice because the president clearly had the power to fire Comey if he chose to do so. Even assuming that a jury—or the United States Senate, which would serve as the jury in an impeachment proceeding—believed Comey’s testimony, they could nonetheless conclude that Trump did not act “corruptly” in asking Comey to drop the Flynn investigation or in firing Comey, as the law requires.
Impeding or influencing an FBI investigation is a crime only if it is done with “corrupt” intent—in other words, the intent to wrongfully impede the administration of justice. In my experience, proving a defendant’s intent without direct evidence—that is, without statements by the defendant that directly reveal his or her intent—is challenging.
One could argue that Trump provided direct evidence when he told NBC’s Lester Holt that he was going to fire Comey regardless of the recommendations of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and that he was thinking of “this Russia thing” when he did so. But Trump quickly followed up that comment by indicating that he thought the investigation was bogus, and his defense to obstruction could be that he genuinely believed the Russia investigation was meritless.
Before bringing a case, prosecutors anticipate defenses like that one and gather evidence to rebut potential defenses. We have since learned of very substantial additional evidence that would rebut that defense, or a defense that Trump didn’t understand the consequences of firing Comey. While that evidence is indirect, Mueller could argue that we can infer Trump’s intent from that evidence, which is how prosecutors typically prove a defendant’s intent.
Whether a Republican Congress would take action against Trump, regardless of Mueller’s conclusions, is anyone’s guess. But Thursday’s news made impeachment proceedings against Trump more likely. Ultimately the president’s performance in his upcoming interview with Mueller could prove decisive. Trump has repeatedly demonstrated a lack of discipline when questioned, and Mueller has a lot to work with. If Trump provides the special counsel with direct evidence of his intent when firing Comey, he could ensure that Mueller will conclude he obstructed justice, leaving his fate to Congress.
https://www.politico.com/magazine/s...on-of-justice-russia-216532?lo=ap_a1&cmpid=sf
