Special counsel Robert Mueller is looking hard at documents on Trump’s firing of former FBI Director James Comey. This touched off endless chatter that Mueller is zeroing in on trying to make a case against Trump for obstruction of justice. That’s a potentially impeachable offense. But it’s a tough sell. The federal statute that governs what is and isn’t an obstruction of justice offense is straightforward. It ticks off the actions required, “threats,” “corrupts,” “impedes,” or “influences,” any action that comes under the explicit proper purview of a government department or Congress. There’s more. It would have to be shown that the person made a false statement, withheld, concealed, altered, or destroyed a document that obstructed the investigation.
The letter Trump sent to Mueller is little more than a rehash of the reasons Trump previously and publicly stated were the reasons that he fired Comey. They boil down to his alleged dissatisfaction with his handling of the Clinton email investigation and the supposed investigation into the alleged Russia presidential election meddling. There is no evidence of any existence, let alone concealment, destruction or tampering, of a document that would show that Trump ordered or demanded that Comey stand down from investigating him. In fact, Trump has waved around the quip he made to Comey about being pleased that he found supposedly nothing to implicate him in any wrongdoing.
The bigger problem with trying to make an obstruction of justice charge stick is the always thorny matter of trying to prove intent. So, even if Trump desperately wanted Comey to back off from any potential investigation of his Russia tie and did try to undermine such an investigation, a prosecutor would still have to prove that he deliberately and willfully used illegal means to stop Comey from an investigation. If it ever came to that, Trump would have one more legal card to play courtesy of the Supreme Court. In its 1974 decision on Nixon and Watergate documents, the court ruled that a president can legally claim executive privilege to skip out of turning over any documents to Congress or any other branch of government. Though when and under what circumstances executive privilege can be evoked is narrow, it does cover documents that a president claims are confidential and sensitive and in some way concerns matters of national security.
If a president did that, it would ignite a battle royal with Congress. And would trigger a firestorm of negative public opinion and the inevitable media feeding frenzy. But luckily for Trump, there’s nothing that comes close to that at this point, since there is no known smoking gun document to hide away from the special prosecutor.
The next line of attack is to try to make the case that Trump’s attorney did everything he could willfully to prevent a letter that Trump penned about his decision to fire Comey from being turned over to Mueller. If there’s something criminally damaging in that letter then that could be enough to bring an obstruction of justice charge since his attorney if called to testify about it before a federal grand jury could not claim attorney-client privilege and dummy up.
Unfortunately, that doesn’t solve the problem of tying the alleged obstruction to Trump. This would require proof that the attorney directly acted under Trump’s orders to alter or withhold such a document. Then Trump could simply stand that on its head and claim that the document was withheld simply because he was acting under the advice of his legal counsel and there was no deliberate attempt to mislead.
If this sounds like going around and around the legal mulberry bush, with where it stops no one knows, that’s exactly what it is. It’s so muddled, confused, and bogged down in a never-ending circle of legal he said-she said assertions to almost hopelessly throttle a prosecutor and a federal grand jury.
Trump’s team is well-versed on the rules about what public officials can do when it comes to business and government here. They know that eyes are carefully watching him to catch him in any dirty dealing. So, him doing something that crudely illegal is almost unimaginable. Another possible charge bandied about is whether his entangled business dealings with the Russians rises to the level of blatant favoritism. Something, of course, could turn up in a deep probe congressional investigation of his supposed tie with the Russians.
The two problems with this is that the likelihood of a GOP congressional committee taking on such a probe is slim to none. The election tampering angle is near impossible to prove. It would take smoking gun proof that Trump directed Putin and his cronies to cook the election books for him.
So, for now we’re back to square one. Lots of talk, speculation and hope that Trump can be tripped up enough to bring a strong case for his removal. But to make that case it’s going to take solid evidence of wrongdoing that meets the high Constitutional bar to oust a president. Mueller is still the key to hopefully make that happen, but it will be tough.
Earl Ofari Hutchinson is an author and political analyst. He is an associate editor of New America Media. His forthcoming book, The Trump Challenge to Black America (Middle Passage Press) will be released in August. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.