With indications that special counsel Robert Mueller’s final report is imminent, talk of “no collusion” is dominating chatter by the president, his fans, and his critics. That is, a finding of no criminal conspiracy between the Trump campaign and Russia is widely anticipated. Yet, my sense is that, more than on collusion, Mueller may focus on the obstruction aspect of his investigation.
I want to examine an element of that, involving the status of Mueller himself.
New York Times reporters Maggie Haberman and Michael S. Schmidt have highlighted Trump’s purported “attempts” to fire Mueller, which mainly involved “trying to get” then-White House counsel Donald McGahn to fire him. What does this reporting tell us? Well, we know prosecutors are investigating whether the president obstructed the Russia investigation. How could bombast about firing Mueller bear on that issue when, of course, Trump never actually fired him?
The answer may be found in that word: attempt.
The Times reporting presages that Mueller has homed in on the parts of federal obstruction laws that address not only interference with a proceeding but also “attempts” to do so. Could the special counsel be poised to argue that Trump committed obstruction by attempting to fire the special counsel?
If that is the theory, it is meritless. In the context of the chief executive’s dismissal of subordinates, the concept of attempt is inapposite. A president either fires someone or he doesn’t.
Actually, there are at least three problems with trying to inflate Trump’s spasms of anger over Mueller into an obstruction felony.
First, the president has constitutional authority to fire subordinate officials, including prosecutors, with or without cause. Certainly, he may be impeached for doing so if Congress decides a dismissal is an abuse of executive power. But firing a prosecutor, particularly one who is managing a counterintelligence probe, would not amount to a viable obstruction crime. A fortiori, taking preliminary steps but stopping short of firing the prosecutor, cannot establish obstruction.
Second, it is unlikely that counterintelligence investigations can be obstructed – although there is an exception, which I’ll come to.
As I’ve pointed out before, federal criminal law prohibits obstruction of an “official proceeding.” FBI investigations are not official proceedings, as federal law defines that term (in section 1515(a)(1) of the penal code). That is not the end of the matter, though, because obstructing certain FBI investigations could have the ultimate effect of obstructing something that is an “official proceeding,” such as a grand jury probe or a criminal prosecution in court. Under federal law (section 1512(f)), an official proceeding can be obstructed even if it is not yet underway when the obstructive conduct occurs. Consequently, interference with a criminal investigation (e.g., corrupt actions to tamper with witnesses or evidence) can result in a valid obstruction charge.
In marked contrast, as I have many times observed, counterintelligence probes are not done to vindicate the rule of law in criminal court prosecutions. They are intelligence-gathering efforts done for the president, to support his duty to protect national security against foreign threats. It is up to the president, not the Justice Department or the FBI, to decide what intelligence the nation needs.
Now, about that “exception” I referred to, above: I am reluctant to state categorically that a counterintelligence investigation could never be obstructed because, as we’ve seen in Russia-gate, these investigations sometimes involve seeking warrants from the Foreign Intelligence Surveillance Court (FISC). Federal law defines “official proceeding” to include “a proceeding before a judge or court of the United States.” I could thus contemplate a valid obstruction charge if, for example, executive branch officials willfully provided false information to the FISC.
But court proceedings aside, I do not believe that a valid obstruction charge could be based on presidential action that restricts or even shuts down a counterintelligence probe. Pace the meanderings of former FBI Deputy Director Andrew McCabe, who recently told "60 Minutes" that he believed the president’s firing of Director Comey may have been obstruction because it could have negatively impacted the FBI’s Russia investigation, the counterintelligence investigation of Russia actually belongs to the president, not the FBI. The bureau performs a support role in the president’s national security mission.
If the FBI had a criminal investigation of the president for conspiring with Russia to commit espionage, we could debate whether his order that it be shut down could be obstruction. But Director Comey repeatedly told Trump he was not under such an investigation. If what was underway was a counterintelligence investigation – which is how Comey described it in March 2017 House testimony, and how Deputy Attorney General Rod Rosenstein reaffirmed it when he appointed Mueller on May 17, 2017 – then a president could not obstruct such a probe by removing the official running it, or even shutting it down. It is for the president, not the FBI and the Justice Department, to decide what the nation’s intelligence-gathering needs are. Again, if Congress believes the president is abusing his power in this regard, it may impeach him.
Finally, we come to the third problem, the one most directly related to the Times’s focus on “attempts” to fire Mueller. Obstruction can be what the law refers to as an “inchoate” crime. To prove that someone is guilty, the prosecutor need not prove that the obstruction was successful. It is enough to prove that the accused corruptly “attempted” to impede the investigation. Obviously, then, the suggestion is that, if a mere attempt can constitute an obstruction offense, then a president can obstruct an investigation by *attempting* to fire a prosecutor.
But this is specious reasoning. We are not talking about the normal person, who can try to bring an outcome about, but is not in a position to determine the outcome. We are talking about the chief executive, who is in complete control of the outcome when it comes to the dismissal of executive officers. A president who truly decides to fire someone cannot be stopped from doing it. The concept of attempt never enters into the picture. The firing decision is completely the president’s call. He either makes it or he doesn’t.
Furthermore, when we talk about a corrupt “attempt” or “endeavor” in obstruction law, we are talking about some kind of action directly applied to the proceeding itself. For example, if I encourage a witness to commit perjury, or I bribe a juror, that is obstruction by attempt. Obviously, I am guilty because I have corruptly meddled in the proceeding, even if the witness refuses to perjure himself, or the juror declines to take the bribe.
To the contrary, if the president were to consider firing a prosecutor, but he reconsidered before any firing decision was ever communicated to the prosecutor, then there would be no direct action taken against the proceeding. There is no attempt or endeavor to obstruct because there has been no meddling in the proceeding at all.
Now, the president has many advisers, the White House counsel being among the most important. Their job is to persuade the president to make good decisions and avoid damaging ones.
Like other government sausage-making, that can be an ugly process. Trump is a mercurial figure. When angry, he may rant, rave, and threaten to fire people; but he is also known to shrink from firing people after threatening to do so.
Sometimes, the president gives directions to recalcitrant subordinates who ignore him, calculating – usually correctly – that he will cool down and change his mind.
You want to say that this is not an optimal way to operate? You’ll get no argument from me.These personality traits have never been a secret, and the public elected the president nevertheless. We are fortunate that, in the main, he has appointed good people who help him arrive at good decisions – even if sometimes the process is not pretty.
If the president orders an adviser to dismiss a subordinate, the dismissal decision is not final until it is communicated to the subordinate who is to be dismissed. If the adviser bucks the president and refuses to carry out the order, that is not a thwarted “attempt” to fire the subordinate. It is an opportunity to reconsider the decision. The president, after all, does not need the adviser’s help in order to fire the subordinate. President Trump did not require White House Counsel McGahn’s assistance to fire special counsel Mueller. He could have ordered the attorney general or deputy attorney general to do it, or he could simply have done it himself.
Advisers have various ways of moving a president off a directive the adviser thinks would be unwise. Sometimes, the adviser will try to talk the president out of it. Sometimes, if he has a strong enough relationship with the president, the adviser will refuse or ignore the directive, knowing this will give the president pause – a delay that provides more time for deliberation and, hopefully, to withdraw the directive before it can take effect.
Functionally, there is no difference between these different methods of persuasion. If the directive is not issued, that does not mean the president has unsuccessfully attempted to issue it. Rather, it means the president reconsidered a decision that was never final.
The president never has to “attempt” to fire a subordinate. Besides that, a directive to fire a prosecutor that was never delivered – that, in effect, was withdrawn before it was ever communicated to the prosecutor – would have no bearing at all on a proceeding, much less corruptly obstruct it … even if that proceeding was an “official” one capable of being obstructed under federal law, which an FBI counterintelligence investigation is not.
Other than that, it’s a great theory.