Yesterday the New York Times dropped its latest scoop on the Mueller investigation: “Mueller Zeros In on Story Put Together about Trump Tower Meeting.” Allegedly, investigators are focusing on the misleading statement that “Trump and his advisers” drafted in response to media reports on the 2016 meeting between Russian lawyer Natalia Veselnitskaya and Donald Jr., Jared Kushner, and Paul Manafort. Here’s how the Times summarized Mueller’s actions:
The statement, released in response to questions from the New York Times about the meeting, has become a focus of the inquiry by Robert S. Mueller III, the special counsel investigating Russian interference in the 2016 election. Prosecutors working for Mr. Mueller in recent months have questioned numerous White House officials about how the release came together — and about how directly Mr. Trump oversaw the process. Mr. Mueller’s team recently notified Mr. Trump’s lawyers that the Air Force One statement is one of about a dozen subjects that prosecutors want to discuss in a face-to-face interview of Mr. Trump that is still being negotiated.
I must confess that I’m somewhat puzzled. The most relevant statute prohibits a person from “corruptly” influencing, obstructing, or impeding or endeavoring to influence, “the due and proper administration of the law” in an actual “pending proceeding” before a “department or agency of the United States” or the “due and proper exercise” of Congress’s “power of inquiry.”
Put in plain English, this statute does not criminalize lying to the public.
It criminalizes efforts to interfere with specific legal proceedings or congressional investigations. Indeed, the Times acknowledges as much in the body of the piece, noting:
Some lawyers and witnesses who have sat in or been briefed on the interviews have puzzled over Mr. Mueller’s interest in the episode. Lying to federal investigators is a crime; lying to the news media is not.
As I’ve written before, Trump’s publicly known actions provide sufficient grounds for an investigation into potential obstruction of justice, but the publicly known evidence isn’t sufficient to conclude that he actually violated the statute. Months later, in spite of numerous additional media reports that Trump either mislead the public or may have pressured his political appointees or staff to drop parts of the investigation, may have considered firing Mueller, or asked various officials for loyalty, there is still not sufficient evidence to charge the president with obstruction.
How do we know? Let’s contrast Trump’s alleged actions with the articles of impeachment against Bill Clinton and Richard Nixon. Earlier this week, Times columnist David Leonhardt put together a helpful list of the strongest claims against Trump. He did so with the explicit purpose of comparing Trump’s actions to the claims against Clinton and Nixon. He meant the list to be damning. Instead it demonstrated that the case against Trump has a long way to go.
Absent an overwhelming and angry Democratic majority in the House and Senate, Trump is unlikely to be impeached and convicted on evidence that only arguably violates the obstruction statute.
Leonhardt’s list includes only one truly consequential set of actions — the termination of the FBI director followed by Trump’s admission that he did so to affect the Russia investigation. Most of the other actions involve attempts to pressure public officials to do what he wants or efforts to spin or mislead the public. Notably, these efforts to pressure his appointees seem to have largely failed. Mueller still has his job, and the investigation continues.
Moreover, there is no evidence yet that Trump has lied to investigators or caused others to lie to investigators; and it seems that none of Trump’s efforts have prevented the special counsel from obtaining the evidence he needs to investigate.
I don’t mean at all to minimize the moral or political problems with Trump’s actions. Misleading the public is a grave problem, and there is probably no Republican alive who would excuse a Democratic president who exerted similar pressure on the Justice Department. Bad faith and hypocrisy abound.
But, again, if the question is whether the president actually violated the law, then the list is insufficient. Impeachment is a political process, but legal issues are still vital. Let’s compare the case against Trump with the case against Clinton and the case against Nixon. What you’ll notice is that in count after count, Presidents Clinton and Nixon are accused of taking actions that quite directly interfered with the administration of justice or interfered with the work of a grand jury.
Clinton, for example, encouraged witnesses to perjure themselves; he also concealed evidence that had been subpoenaed, lied to witnesses so that they’d present false testimony, and gave “job assistance” to a witness to help secure favorable testimony.
The counts against Nixon are also damning and quite obviously aimed directly at feeding false information to federal authorities. He was accused, among other things, of lying to investigators, withholding information from investigators, approving payments to witnesses to buy their silence, and funneling information from the DOJ to targets of investigations to assist in their efforts to avoid criminal liability.
Yes, Nixon was also accused of “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States,” but no serious person believes that public lies alone — unaccompanied by his direct interference with a lawful investigation — would have been grounds for impeachment.
What are we to take from this comparison? First, for a president to be credibly accused of obstruction, he doesn’t actually have to succeed in stopping the investigation, but past presidential precedents suggest that the bar for impeachment is high enough that it requires proof of efforts that either corruptly prevent investigators from gaining information or corruptly facilitate perjury or other actions that feed false information to investigators or otherwise impede the investigators from doing their work.
There is an open and interesting constitutional question as to whether a president can use his constitutional executive authority to simply end an investigation — regardless of intent — without violating the law, but there is little constitutional support for the notion that the president can engage in Clinton- or Nixon-style patterns of misconduct with impunity.
With Trump, we are confronted with choking, billowing smoke but so far no fire. We’ll see the actual blaze, however, if the Mueller team uncovers evidence that Trump went beyond “pressuring” public officials and actually asked members of his team to lie to investigators, lied to or withheld information from associates so that they’d supply false information to investigators, lied to investigators himself, or hid evidence. Each of these actions would have a direct and unmistakable link to actual “pending proceedings.” Each of these actions would be both clearly corrupt and beyond the outer limits of his constitutional authority.
One final note. Given the politics of impeachment, absent an overwhelming and angry Democratic majority in the House and Senate, Trump is unlikely to be impeached and convicted on evidence that only arguably violates the obstruction statute. It would strain the body politic and civil society to stretch legal arguments to the breaking point in the quest to unseat a lawfully elected president. For Mueller to file a solid obstruction charge, he needs to have solid evidence. While we don’t know what he knows, the publicly available evidence remains (so far) insufficient to make the case.