The Washington Post reports that Robert Mueller is investigating President Trump’s “private comments and state of mind” during the period when he issued a series of tweets belittling Attorney General Jeff Sessions. According to the Post, the thrust of Mueller’s inquiry is to determine whether the president’s goal was to oust Sessions in order to pick a replacement who would exercise control over Mueller’s investigation.
If this story is true, it demonstrates why the nation needs someone in the Justice Department to exercise control over Mueller’s investigation. It also confirms the suspicion that Mueller is either nuts, desperate to get Trump, or both.
I hated it when Trump went after Sessions on Twitter, a move all-too characteristic of this unpresidential president. But to view the attack as evidence of obstruction of justice strikes me, on first reading, as ridiculous.
For one thing, the president has the right to replace the attorney general if he believes his appointee isn’t performing well in any aspect of his job, including the overseeing of an investigation that involves the president. I don’t see how the exercise of this power can be the basis for, or evidence of, obstruction of justice. The remedy for misuse of the power is, as Andy McCarthy has often argued, impeachment, not a charge of obstruction.
Moreover, the president did not fire Sessions. Maybe he thought about doing so, but “thought crimes” aren’t obstruction of justice.
Maybe the president hoped through his tweets to induce Sessions to quit. There’s a good chance he did. But “hope crimes” aren’t obstruction of justice, either. At least not in this context.
According to all accounts I’ve read or heard, Trump went after Sessions because he was furious that the attorney general had recused himself from the Russia investigation. In addition, he believes that, if Sessions thought he couldn’t participate in this investigation, he should not have taken the job.
Whatever one thinks of Trump’s view, he is entitled to hold it, to express it, and to remove Sessions because of it (which he could have done but did not do).
Mueller, though, suspects that the attack on Sessions wasn’t a fit of rage about the past, but rather was all about the future — and about Mueller. He thinks that, heaven forbid, Trump’s goal was to increase Justice Department supervision over him and his team of Trump-haters.
It’s conceivable that such a motive played a part. But what if it did? It’s abnormal for an attorney general not to be able to oversee an investigation as important as Mueller’s. How can it be obstruction of justice to think about remedying, or hoping to remedy, this situation?
Since Trump didn’t sack Sessions and the attorney general didn’t resign, we don’t know who would have replaced him or how his replacement would have acted. Thus, we don’t know what the effect, if any, of a Sessions resignation would have been on Mueller’s investigation. Would the new AG have “obstructed” Mueller? One can only speculate. Building an obstruction of justice claim on such speculation seems crazy, desperate, or both.