Ever since special counsel Robert Mueller began his investigation into Heaven knows what, there has been a cottage industry focused on the idea of “obstruction.” Apparently, obstruction is when Trump does something that someone doesn’t like. For instance, he fired James Comey. Even though Comey was not involved in the ongoing Russia probe — that was in the hands of Andrew McCabe — this was obstruction. If the president asks Rod Rosenstein “are you on my team.” This is obstruction. The White House working, under its statutory authority, with the Intelligence Committee to review “the memo” is obstruction. Even though the memo has nothing to do with what Mueller is supposed to be investigating and there are zero circumstances in which revealing wrongdoing can be obstruction. But obstruction is very tricky. When Rod Rosenstein asked Trump to step in and block the request for documents and witnesses needed for an investigation by the House Intelligence Committee, that was “defending institutional equities” (whatever the f*** that word salad is supposed to mean), not pretty obvious obstruction.
Today Politico, presumably in what is a foreshadowing of what we will be listening to for the next few weeks, takes up the “obstruction” issue: Russia probe lawyers think Mueller could indict Trump.
While many legal experts contend that Mueller lacks the standing to bring criminal charges against Trump, at least two attorneys working with clients swept up in the Russia probe told POLITICO they consider it possible that Mueller could indict the president for obstruction of justice.
Neither attorney claimed to have specific knowledge of Mueller’s plans. Both based their opinions on their understanding of the law; one also cited his interactions with the special counsel’s team, whose interviews have recently examined whether Trump tried to derail the probe into his campaign’s Russia ties.
“If I were a betting man, I’d bet against the president,” said one of the lawyers.
The second attorney, who represents a senior Trump official, speculated that Mueller could try to bring an indictment against Trump even if he expects the move to draw fierce procedural challenges from the president’s lawyers – if only to demonstrate the gravity of his findings.
Note the sourcing.
Then we get to lawyers who are willing to be quoted:
“It is proper, constitutional, and legal for a federal grand jury to indict a sitting President for serious criminal acts that are not part of, and are contrary to, the President’s official duties,” Starr’s legal adviser, Ronald Rotunda, concluded in a 1998 memo first made public last summer through an open records request by the New York Times.
“In this country, no one, even President Clinton, is above the law,” the memo said.
Despite that assertion, Rotunda said in an interview that Mueller cannot indict Trump because he has a different legal standing than Starr enjoyed. Starr’s powers were defined by an independent counsel statute that expired in 1999. Rotunda said Mueller, by contrast, effectively has the powers of a U.S. attorney and must follow all DOJ “rules, regulations, procedures, practices and policies.”
That would mean Mueller is bound by the Clinton Justice Department’s 2000 memo, he said, as well as another Justice Department opinion written in 1973.
“If we know anything about Mueller, we think we know that he follows the rules—all of them,” Paul Rosenzweig, another former Starr deputy, wrote Tuesday in the Atlantic. “Mueller will not indict Trump for obstruction of justice or for any crime. Period. Full stop. End of story. Speculations to the contrary are just fantasy.”
I’m very much of the Alan Dershowitz view on this. The president has the total and unfettered legal authority to tell any federal law enforcement agency to back off any investigation for any reason. Period. End of discussion. If Congress doesn’t like it, the remedy is impeachment and the next guy can do what he wants. But if the president can’t direct agencies on how to use their resources, then that effectively makes that agency independent of the executive branch. We know that the Obama administration ordered Justice and the FBI and the DEA to leave Hezbollah alone because they didn’t want to offend Iran. No one is claiming this is obstruction but it is much closer to obstruction than anything Trump is alleged to have done. We know about Fast and Furious. What was that?
I am not a lawyer and I don’t play one on the internet and I don’t recall a non-drunken moment when I wanted to be one. So I’m going to turn to someone who is one for analysis. Eric Columbus. Columbus was, among other things, the chief lawyer to Sally Yates. He wrote an op-ed on why Trump will not be indicted (read the whole thing) but, in the fashion of the age, he also sent it as a tweetstorm.
This was the setup. It started with something typically Scarborough from Joe Scarborough:
There is an assumption that a sitting president cannot be indicted but this is not settled law. If indicted, the Supreme Court will decide if a president who tried to obstruct an independent investigation should be charged for doing just that. https://t.co/JXAhJR66ST
— Joe Scarborough (@JoeNBC) January 26, 2018
Then Fat Wally Schaub chimed in:
This is Columbus’s response:
Mueller almost certainly won’t indict Trump – not because it would be unconstitutional, but because Mueller’s authority is very different from Ken Starr’s was. I can explain.
As @waltshaub notes, DOJ’s Office of Legal Counsel — in essence, the lawyers’ lawyers — has opined that it’s unconstitutional to indict a sitting president. OLC reached this conclusion twice — in 1973 and in 2000. Here’s the 2000 opinion: https://www.justice.gov/file/19351/download
Last year @charlie_savage discovered that in 1998 Ken Starr solicited an opinion from a highly regarded law professor, @rrotunda, who reached the opposite conclusion. https://www.nytimes.com/2017/07/22/us/politics/can-president-be-indicted-kenneth-starr-memo.html
Even though Starr ultimately decided not to indict Clinton, he concluded he *could* do so. https://www.nytimes.com/1999/01/31/us/president-s-trial-independent-counsel-starr-weighing-whether-indict-sitting.html
Why did Starr feel he could ignore OLC’s 1973 opinion? Because the law under which he was appointed allowed him to do just about anything. His title was “independent counsel,” and for all intents and purposes he was the Department of Justice with regard to Clinton.
That law expired, however, in 1999 (existing independent counsels were grandfathered in) amidst concern that ICs had too much leeway. It was replaced by a much tamer system allowing for the appointment of a “special counsel” — which is Mueller’s title.
This is the important part:
Mueller is essentially the equivalent of a U.S. Attorney, except that his jurisdiction is defined by topic rather than geography. He reports to Deputy Attorney General Rod Rosenstein, who is the acting Attorney General for such purposes due to Sessions’ recusal.
(If Sessions leaves, Trump can immediately name any Senate-confirmed official to serve as acting AG for nine months — e.g. EPA head, and former Oklahoma AG, Scott Pruitt, who could then try to restrict Mueller’s running room. This is why I hope Sessions stays on the job!)
Per the DOJ special counsel regulations, Mueller must abide by all DOJ “rules, regulations, procedures, practices and policies.” (28 C.F.R. 600.7(a), if you’re keeping score at home.) 9/
And Rosenstein may veto any Mueller action he deems inappropriate or unwarranted. 28 C.F.R. 600.7(b).
By contrast, the independent counsel statute allowed Starr to deviate from DOJ policies where necessary to achieve the purposes of the statute, and didn’t allow the Attorney General to restrict his actions (other than firing him for good cause).
Given these rules, it’s extraordinarily unlikely that Mueller would bring a prosecution that, in the judgment of DOJ’s Office of Legal Counsel, would violate the Constitution.
(Theoretically, Mueller or Rosenstein could ask OLC to revisit its opinion, but it’s very doubtful that OLC would change its view on an issue that it already addressed twice.)
So what can Mueller do if he believes that Trump has committed criminal acts? Mueller must provide Rosenstein a final report explaining all his “prosecution or declination decisions” — i.e. why he prosecuted individuals or declined to do so.
The format of this report isn’t specified by regulation, but if Mueller were otherwise inclined to indict Trump, I suspect he would set forth relevant facts. I also believe Rosenstein would make relevant portions of the report public, although he isn’t obligated to do so.
While some have suggested that Mueller would make an “impeachment referral” to Congress if he finds evidence of impeachable acts, that was part of the now-expired independent counsel statute and is no longer an option for Mueller.
Other than judicial filings and trial proceedings, Mueller’s work can reach Congress only with Rosenstein’s blessing — unless Congress subpoenas Mueller’s report, which isn’t likely to happen as long as the GOP controls Congress.
(It’s also possible that Congress might subpoena grand jury evidence, as suggested here by @rgoodlaw and @alexgwhiting.) https://www.justsecurity.org/44191/mueller-grand-jury-report-public-hand-congress/
Bottom line: Trump won’t be indicted, this is all about impeachment, the upcoming midterm elections are crucial, Rosenstein remains a very important guy, and I’m holding my nose and hoping that Sessions stays where he is.
But we all know what is happening here.
The Russia-collusion narrative has melted away. Mueller, as do all special counsels, will feel obligated to find some ratty scalps to hang on his lodgepole if his investigation isn’t going to be a total waste of time (think Patrick Fitzgerald). The only thing that anyone can hang on Trump is some nebulous allegation of “obstruction.” Will Mueller decide to provoke a political crisis by going full-metal Jack McCoy and finding Trump obstructed by acting within his lawful authority? Who knows. He was Comey’s mentor. He can’t be happy with the heat coming his way. Given what we’ve seen thus far, it is entirely possible.