One small upside to having a president embroiled in scandal: Before all this is over, we’re probably going to learn a lot about some obscure sections of the Constitution.
On Monday, President Trump’s attorneys unveiled a bold, new legal strategy regarding special counsel Robert Mueller’s investigation of whether Trump had obstructed justice, among other potential Russia-related crimes. In interviews with Axios and NBC News, Trump’s personal lawyer John Dowd claimed “the president cannot obstruct justice because he is the chief law-enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”
Dowd did not elaborate, but as the Washington Post explains, constitutional scholar Alan Dershowitz has been espousing that theory since last summer.
“You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate,” Dershowitz said on Monday’s Fox & Friends. “That’s what Thomas Jefferson did, that’s what Lincoln did, that’s what Roosevelt did. We have precedents that clearly establish that.”
Many legal scholars still disagree with that interpretation, arguing that the president’s role as a law-enforcement officer does not give him the right to shield himself and his associates from any legal accountability. In a 108-page analysis of the potential obstruction case against Trump, the Brookings Institution summarized the types of actions that could amount to presidential obstruction of justice:
Attempts to stop an investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the type of acts that have frequently resulted in obstruction convictions, as we detail. In addition, to the extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges.
While one particular action might not seem that significant, it could help prosecutors establish intent — an important consideration in obstruction cases. Norm Eisen, a former Obama administration ethics counsel who co-authored the Brookings paper, told the Post: “There’s a long line of cases holding that when a government official exercises an otherwise legal authority with corrupt intent, they can be prosecuted for obstruction. It flows from the notion that no person is above the law.”
While there’s still much we don’t know about Mueller’s probe, there’s also plenty in the public record that experts say could add up to an obstruction charge for President Trump. These range from the firing of FBI director James Comey to Twitter attacks that are now mostly forgotten. Here’s a recap of some of the incidents that could help Mueller make his case.
The “Loyalty” Dinner
A week after the inauguration, Comey was summoned to the White House for a private dinner with the president. In his June Senate testimony, Comey said Trump started the conversation by asking if he wanted to stay on as FBI director, which Comey found “strange” because they had already discussed the matter twice, and Comey had said he intended to remain in the position. Comey said Trump noted that many people wanted the job, so he assumed the dinner was “at least in part, an effort to have me ask for my job and create some sort of patronage relationship.”
Comey said Trump then told him, “I need loyalty — I expect loyalty.” Comey said he did not respond, and Trump circled back to his demand two more times during their conversation, eventually getting a promise of “honest loyalty” from the director.
Trump denies that he asked for Comey’s loyalty, but, if true, this could be interpreted as Trump suggesting that the director should demonstrate fealty by backing off on the Russia probe, and intimating that Comey’s job was on the line.
The timing of the meeting is also an important consideration. It might have been plausible that Trump just set up a dinner because he wanted to get to know his FBI director. However, Comey said he received a call around lunchtime on January 27 inviting him to dinner that night. That just happens to be a day after former acting attorney general Sally Yates met with White House counsel Don McGahn to inform him that Vice-President Pence and other officials had been making public statements about Michael Flynn “that we knew to be untrue.” Yates warned that this opened the national security adviser up to blackmail by the Russians. We now know that Flynn had lied about his conversations with Russian ambassador Sergey Kislyak in an FBI interview days earlier.
Asking Comey to Drop the Flynn Probe
Trump fired Flynn on February 13, ostensibly for lying to Pence. Comey testified that, after an Oval Office meeting with a large number of advisers the next morning, Trump asked everyone but Comey to clear the room. Comey said Trump told him he wanted to talk about Flynn.
“He is a good guy and has been through a lot,” Trump said, according to Comey. “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Comey said his only reply was, “He is a good guy.”
Comey said he believed the president was asking him to “drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”
This is one of the clearer examples of Trump allegedly trying to influence an investigation, and sending everyone else out of the room could help establish nefarious intent.
Firing Preet Bharara
New presidents usually ask all U.S. attorneys to step down, but Trump demanded their resignations in March after telling Preet Bharara, the United States Attorney for the Southern District of New York, in November that he wanted him to stay on. Months later, Marc Kasowitz, Trump’s personal lawyer in the Russia investigation, reportedly bragged that he played a central role in getting Bharara fired, by telling Trump, “This guy is going to get you.” Bharara later hinted that he was investigating some Trump-related matter.
Asking the Director of National Intelligence to Pressure Comey
At the end of a briefing on March 22, Trump reportedly asked everyone to leave the room except director of national intelligence Daniel Coats and CIA director Mike Pompeo. According to the Washington Post, Trump then asked Coats if he could intervene to get Comey to back off from investigating Flynn as part of the FBI’s Russia probe. Later, when testifying before the Senate, Coats refused to confirm or deny this account, but said he didn’t feel pressured to do anything improper.
Asking Intelligence Officials to Push Back Against the FBI’s Collusion Probe
Around the same time, Trump reportedly called Coats and Admiral Michael Rogers, director of the National Security Agency, and asked them to publicly deny that there was any evidence suggesting collusion between the Trump campaign and the Russian government. Days earlier, Comey had confirmed for the first time that the Trump–Russia link was under FBI investigation.
They both declined to get into the matter during their Senate testimony in June, with Rogers saying, “I have never been directed to do anything I believe to be illegal, immoral, unethical, or inappropriate.”
Asking Comey to “Lift the Cloud” of the Russia Investigation
Comey testified that Trump called him on March 30 and complained that the Russia probe was hurting his administration. “He asked what we could do to ‘lift the cloud,’” Comey said, adding that when he reiterated that Trump wasn’t personally under investigation, the president said, “We need to get that fact out.”
Attacking Comey on the Eve of His Senate Testimony
A day before Comey went before the Senate Judiciary Committee, Trump engaged in what could be construed as witness intimidation:
Attacking Sally Yates on the Eve of Her Senate Testimony
Trump made the same move on the eve of his former acting attorney general’s testimony before the same committee:
Following Up on His Request to Comey
Comey says he spoke to Trump for the last time on April 11, when the president called to see what Comey had done to get the word out that Trump wasn’t personally under investigation. “I have been very loyal to you, very loyal; we had that thing, you know,” Trump said, according to Comey. The director added, “I did not reply or ask him what he meant by ‘that thing.’”
The next day, Trump publicly suggested that Comey’s job was on the line, telling Fox’s Maria Bartiromo that it was “not too late” to let him go, adding, “We’ll see what happens. You know, it’s going to be interesting.”
There are several different elements of Comey’s dismissal that could play into an obstruction charge, but obviously firing the official overseeing investigations into your campaign and your associates is a sign you’re trying to impede those probes.
Concocting a Cover Story for Comey’s Firing
Trump was reportedly infuriated by Comey’s testimony before the Senate Judiciary Committee, particularly the director’s comment that he was “mildly nauseous” to think his handling of the Clinton email probe might have swayed the election. With the help of aide Stephen Miller, Trump drafted an “angry, meandering” four-page letter in which he said he was firing Comey for refusing to publicly confirm that he wasn’t personally targeted in the Russia probe.
The letter was never sent, but according to the New York Times, it was passed on to deputy attorney general Rod Rosenstein, who then came up with his own letter, which was used as the administration’s public justification for Comey’s firing. Eliciting help from others in concocting a false story about why Comey was fired could help federal prosecutors show that Trump acted with corrupt intent.
Telling Russian Officials Comey’s Firing Was About the Russia Probe
Trump did a poor job of concealing the real reasons for Comey’s firing. According to a document leaked to the New York Times, in an Oval Office meeting a day after Comey’s firing, Trump told Russian foreign minister Sergey Lavrov and Russian ambassador to the United States Sergey Kislyak, “I just fired the head of the F.B.I. He was crazy, a real nut job.” Trump added, “I faced great pressure because of Russia. That’s taken off.”
Admitting Comey’s Firing Was About the Russia Probe on National TV
Days after firing Comey, Trump contradicted his administration’s account in an interview with NBC News. He said he was going to fire Comey regardless of what Rosenstein said, and confirmed it was about the Russia investigation.
“And in fact when I decided to just do it, I said to myself — I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won,’” Trump said.
Threatening to Release Tapes of His Talks with Comey
The weekend after firing Comey, Trump made what appeared to be another attempt to threaten Comey. It turns out there were no tapes, and Comey called Trump’s bluff. “Lordy, I hope there are tapes,” he said in his Senate testimony.
Publicly Threatening Mueller
Shortly after Rosenstein appointed Mueller as special counsel on May 17, Trump and his allies began publicly floating the idea that the president might fire him. In a Times interview, Trump seemed to warn that Mueller shouldn’t probe his family’s financial dealings, saying he’d see that as a “violation.” When The Wall Street Journal asked if Mueller’s job was safe, Trump responded, “No, we’re going to see.”
Attacking Attorney General Jeff Sessions for Recusing Himself
In the same Times interview, Trump kicked off what would be weeks of attacks on attorney general Jeff Sessions for recusing himself from the Russia probe, which led to Mueller’s appointment. Trump said:
So Jeff Sessions takes the job, gets into the job, recuses himself. I then have — which, frankly, I think is very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, “Thanks, Jeff, but I can’t, you know, I’m not going to take you.” It’s extremely unfair, and that’s a mild word, to the president.
Drafting a Misleading Statement About Don Jr.’s Russia Meeting
Trump may have engaged in a cover-up attempt when he dictated a misleading statement about Donald Trump Jr.’s meeting with several Kremlin-connected Russians.
Pressuring Multiple Senators to End Their Russia Probe
Last week the Times reported that Trump called several top GOP senators over the summer and urged them to wrap up the Senate’s Russia probe. Senate Intelligence Committee chair Richard Burr confirmed that Trump contacted him, saying “something along the lines of, ‘I hope you can conclude this as quickly as possible.’” Burr said he did not feel there was any “sinister motive” in Trump’s call.
Tweeting That He Knew Flynn Lied to the FBI
The president set off a new round of obstruction talk on Sunday when he sent out a tweet that seemed to imply he knew Flynn had committed a crime by lying to the FBI before he pressured Comey to go easy on him:
Trump’s personal lawyer, John Dowd, then claimed he crafted the sloppy missive on behalf of the president. Unfortunately for Trump, any potential obstruction charge probably won’t hinge on one inarticulate tweet from his lawyer.