It’s now an obstruction probe, and probably an impeachment one

Sen. Dianne Feinstein said on Sunday that she believes Robert Mueller is building an obstruction of justice case against President Trump over the firing of James Comey. Speaking on “Meet the Press,” Feinstein stated:

I think what we’re beginning to see is the putting together of a case of obstruction of justice. I think we see this in the four indictments and pleas that have just taken place. . . .

I see it most importantly in what happened with the firing of Director Comey, and it is my belief that that is directly because he did not agree to lift the cloud of the Russia investigation. That’s obstruction of justice.

I agree with Feinstein, and with Andy McCarthy, that this is now an obstruction of justice investigation. I don’t agree that firing Comey because “he did not agree to lift the cloud of the Russian investigation” is obstruction of justice.

Trump says he fired Comey because he wouldn’t say publicly what he told the president privately, namely that there is no evidence of collusion. I’m not a criminal lawyer, but I don’t think an obstruction of justice case can be built around a PR issue like this.

The real concern would arise if Trump tried to obstruct the FBI’s work as it investigated Michael Flynn and issues related to contacts with Russia. In my opinion, firing Comey because he wouldn’t say publicly what he told Trump privately didn’t obstruct the FBI’s investigation and could not reasonably have been intended to accomplish this.

But what if Trump said to Comey (as Comey alleges he did):

I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.

Again, I’m not a criminal lawyer, but this plea on behalf of Flynn doesn’t seem like obstruction of justice. It’s not a directive. Indeed, Comey himself must not have considered the statement obstruction of justice in itself. He reported no crime.

Presumably, a case of obstruction of justice would view the plea for Flynn and the firing Comey, taken together, as an attempt to obstruct. But the record doesn’t seem to support the view that Trump fired Comey for not letting Flynn (or the investigation) “go.” The firing occurred long after Comey rejected Trump’s plea.

As noted, it appears to have been motivated by Comey’s unwillingness to relieve pressure on the White House by saying publicly what he told Trump privately. The firing of Comey did not mean relief for Flynn or an end to the Russia investigation, nor could Trump reasonably have calculated that this would be the effect.

This discussion encompasses only facts that are publicly known. Mueller’s team may know of other facts or allegations. It may be getting them from witnesses it has “flipped.” Thus, Mueller may be able to weave a better case of obstruction of justice than the one I’ve described.

But let’s assume the firing of Comey is the centerpiece of an obstruction case. Andy McCarthy argues that because “as president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director,” there can be no obstruction case against Trump. Indeed, says Andy, there can be no obstruction case even if Trump knew Flynn had lied to the FBI (i.e., that Flynn had committed at least one felony), and he leaned on Comey to close the FBI’s probe.

McCarthy may be right, but does Mueller agree? What if he charges Trump with obstruction of justice?

McCarthy says Trump would have “unfettered discretion to fire Mueller and to direct the Justice Department to drop the case.” The remedy would be impeachment.

Andy believes Mueller will stop short of attempting to prosecute. Rather, he sees “the real danger for President Trump [as being] a report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.”

Again, this may well be right. But if Mueller’s goal is (or becomes) seeing Trump impeached, he might better be able to advance that objective by attempting to prosecute.

It depends on the strength of the case he would present in his report. Suppose the case revolves around Trump’s plea to Comey and the firing several months later. The public has known about this evidence for half a year. There’s little indication that a critical mass thinks it warrants impeachment. A legalistic report from Mueller is unlikely to change this.

But suppose Trump has fired Mueller for bringing a criminal case. Now you have (1) the rough equivalent of a “Saturday Night Massacre” and (2) something that, in the public mind, may smack of real obstruction. The case for impeachment may gain wider acceptance.

In any event, we do seem to have reached a turning point in the Mueller investigation. The collusion probe may be mostly over and the obstruction probe will likely move to the forefront, with impeachment the probable end game.


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