The thing to bear in mind is that the president of the United States does not “attempt” to fire anyone in the executive branch. The chief executive either fires an inferior executive official or he does not. “Attempt” does not enter into it.
Yet “attempt” is the foundation on which the New York Times’ Michael S. Schmidt and Maggie Haberman build their blockbuster report this weekend about the decision by President Trump — apparently on the advice of his first team of lawyers — to waive executive privilege and attorney-client privilege so that prosecutors on the staff of Special Counsel Robert S. Mueller III could interview White House Counsel Donald F. McGahn II.
I will in another column address the significance of the waiver. (To my mind, it bolsters the already strong argument that the president should not agree to be interviewed by the special counsel.) For now, let’s keep our eye on the ball: the question of whether there is an obstruction case against the president. The Times report is lengthy, but here is the critical passage:
In at least three voluntary interviews with investigators that totaled 30 hours over the past nine months, Mr. McGahn described the president’s furor toward the Russia investigation and the ways in which he urged Mr. McGahn to respond to it. He provided the investigators examining whether Mr. Trump obstructed justice a clear view of the president’s most intimate moments with his lawyer.
Among them were Mr. Trump’s comments and actions during the firing of the F.B.I. director, James B. Comey, and Mr. Trump’s obsession with putting a loyalist in charge of the inquiry, including his repeated urging of Attorney General Jeff Sessions to claim oversight of it. Mr. McGahn was also centrally involved in Mr. Trump’s attempts to fire the special counsel, Robert S. Mueller III, which investigators might not have discovered without him.
As we have covered here many times, Special Counsel Mueller’s obstruction investigation is premised on a dubious legal theory — one I believe is unfounded.
To make a felony obstruction case, a prosecutor must prove beyond a reasonable doubt that a person corruptly impeded an investigation. The Resistance will be disappointed to learn that it is not enough to claim that President Trump is corrupt in general. To be criminally liable, he has to have done corrupt things specifically to obstruct the investigation. He has not.
Presidents Nixon and Clinton, who were investigated for obstruction, tampered with witnesses, which is an illegal act. (Clinton was impeached but not removed from office; Nixon would have been impeached and removed had he not resigned.) President Trump, by contrast, has not committed any overtly illegal act. As the Times recounts in the above excerpt, he fired the FBI director; he urged the attorney general to renounce his recusal from the investigation and resume supervision of it; and he threatened to fire the special counsel (which the Times strains to depict as “attempts” to fire Mueller). Regardless of what one thinks of these actions from the standpoint of judgment and policy, they are incontestably constitutional prerogatives of the chief executive.
Hence Mueller’s problem: To make a criminal case, he must theorize that a president can commit obstruction by doing lawful things for allegedly corrupt reasons. This is bogus. Indeed, it is bogus by the Justice Department’s own reasoning.
Recall that two months ago, the DOJ’s inspector general, Michael Horowitz, filed his voluminous report on the FBI’s conduct in the Hillary Clinton emails investigation. The report (which I wrote about here) was enthusiastically embraced by the Justice Department and the FBI. Although the IG found extensive evidence of corruption — in the form of partisan bias on the part of the investigators — Horowitz concluded that he could not find any particular investigative decision that was driven by corrupt motives. The IG reasoned that because the investigative actions taken were (a) ostensibly lawful, (b) within the FBI’s broad discretion, and (c) possibly justified by non-corrupt reasons, there was insufficient evidence to find that the bureau acted corruptly.
Here, the president’s position is even stronger than the FBI’s. The bureau is a creature of statute; though executive in nature, its authority and actions are governed by statutes and regulations. The president, to the contrary, derives his power from Article II of the Constitution; his inherent authority is broader, and his discretion to direct the executive branch, including to dismiss executive officials, cannot be confined by statutes and regulations. Consequently, if the chief executive’s actions are ostensibly lawful, an inferior executive officer such as the special counsel has no business inquiring into the motivation behind them. Moreover, even if such an inquiry were appropriate, by the Justice Department’s own logic (exemplified in IG Horowitz’s report), a federal prosecutor must assume that the president’s motives were proper if legitimate reasons could have supported them.
The Justice Department has already taken the position that there were legitimate reasons to dismiss FBI Director Comey. Indeed, a memo to that effect (entitled “Restoring Public Confidence in the FBI”) was authored by Deputy Attorney General Rod Rosenstein, to whom Special Counsel Mueller answers in the chain of command.
The other two actions on which the Times focuses are actually non-actions that the paper portrays as if they were elaborate processes that Trump has corrupted. The Times claims that White House counsel McGahn has intervened in the president’s “attempts” to fire Mueller. But there are no “attempts.” We are talking about making a decision, not manufacturing a widget or carrying out a set of mandatory procedures. To fire Mueller, the president merely needs to decide to do it and communicate the decision to the special counsel. He doesn’t have to “attempt” to do anything. In that connection, McGahn is only an adviser. He is not an actor who has interrupted and thus aborted some elaborate enterprise. He has simply advised the president against deciding to fire Mueller.
The situation with Attorney General Sessions is similar. The president could order Sessions to renounce his recusal, and fire him (or, more likely, accept his resignation) if he declines to execute the order. But Trump has not done that. Badgering on Twitter does not turn a decision into a process. The president can stomp his feet from now until 2020, but the blunt bottom line is that he either gives Sessions an order or he doesn’t. So far, he hasn’t.
Why all this effort to turn non-actions into “attempts”? Well, Trump’s opposition takes the position that firing Mueller — or cramping his style by substituting as his supervisor the conflicted Sessions in place of Rosenstein (who, by the way, has his own conflicts) — would be tantamount to an impeachable offense that corruptly obstructs the investigation. Yet, the president hasn’t fired Mueller or interposed Sessions. Since the Resistance does not have the corrupt act they need, they are trying to fabricate corruption out of the operation of Trump’s mind. But that’s not how it works.
Or at least, that’s not how it works in an obstruction prosecution.
Here, finally, we reach the ultimate issue. With regard to the president, Mueller’s investigation has never been about prosecution. It has been about impeachment. As I have stressed any number of times, impeachment is not a legal remedy but a political one. To indict and convict, a prosecutor must establish all of the essential elements of a penal offense; but Congress is not confined to penal offenses in impeachment proceedings. A prosecutor may not legitimately charge a president with obstruction on the basis of constitutionally permissible acts, even if the prosecutor suspects they were corruptly motivated. Congress, however, may impeach the president for such acts on the theory that they are abuses of power. And to reaffirm what we have often observed, the Framers intended that presidential corruption would be addressed by Congress, not by prosecutors.
That explains the focus on the president’s state of mind. Mueller is not writing an indictment for the grand jury. He is writing a report — one that is technically for the Justice Department, but that the special counsel knows will land in Congress’s lap. If the Democrats take the House in the midterms by a wide enough margin, they will decide that the president’s purported corruption is impeachable — even if he has not acted on his allegedly corrupt motives, and even if there is no indictable offense.