Will Trump’s Obstruction of Justice Defense Backfire?
A memo addressed to Special Counsel Robert Mueller and obtained by the New York Times from January of this year makes a broad defense of President Trump against charges of obstruction of justice. The memo from Trump’s lawyers states flatly that the president has ultimate authority to terminate any investigation or fire an FBI director for “any reason.” Does this make legal sense? And even if it does, will this kind of defense help Trump?
Indeed, during Watergate, the articles of impeachment against Nixon included the charge that he obstructed justice by “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” At any time and for any reason. The context was Comey, but the implications are chilling: that Trump asserts the right to terminate the Russia probe altogether. Or the investigation into his lawyer Michael Cohen. This is a scary vision of the power entrusted to any president, but especially this one.
Trump is waging a war against Mueller. When he charges that he is being victimized by a “Criminal Deep State” conspiracy, he is waging war against the Justice Department and the FBI. When he virtually stalks and hounds Attorney General Jeff Sessions, he is waging war against Sessions. When he berates and insults Deputy Attorney General Rod Rosenstein, he is waging war against him. Among the vast number of voters who have made Trump extraordinarily unpopular, these vicious attacks against bastions of American justice that Trump treats as enemies create anger, alarm and outrage.
Where some see the president acting to obstruct or derail the investigation, others see the Justice Department as acting to obstruct or derail the president. Moreover, even if the president is wrong about his deep-state conspiracy theories, he can claim that his motivation was not just clear but expressly stated… The conspicuous omission of a denial from Giuliani could reflect a decision that Trump’s defense is quickly being reduced to a fight over motivations rather than means. To convict Trump of obstruction of justice, Mueller must prove that the demand for “unrecusal” was not just unseemly but unlawful.