For the past several days, the media has been ablaze with stories touting new details of Mr. Trump’s concern about the Russia investigation and his alleged efforts to quash it. For example, Mr. Trump apparently believed that Attorney General Sessions could control the investigation and shield Mr. Trump, and therefore sought to prevent Sessions from recusing himself by sending White House counsel Donald McGahn to lobby Sessions against recusal. Other bits and pieces are solidifying the proposition that Trump fired Comey in order to stop or impede the Russia investigation.
Unsurprisingly, many commentators have been declaring one or the other of these revelations definitive proof that Mr. Trump is guilty of obstruction of justice. The purpose of this post is not to assess the current state of the evidence. Rather, I want to re-emphasize several points I made last summer:
1) While it is quite possible (contrary to the ill-considered declarations of folks like Alan Dershowitz) for a president to commit the crime of obstruction of justice, the official position of the Department of Justice is that a sitting president may not be criminally indicted. Robert Mueller, whose appointment makes him subject to DOJ rules and regulations and subordinate to Deputy Attorney General Rod Rosenstein, has no authority to disregard that DOJ position. Accordingly, no matter what evidence Mr. Mueller uncovers, it is vanishingly unlikely that he would even attempt to indict Mr. Trump for obstruction.
2) Even if Mr. Trump were indicted and convicted of obstruction, such a conviction would not result in his removal from office. Only impeachment can accomplish that end. Only Congress can impeach and remove a president. And therefore the real question is what Congress will choose to do with whatever Mr. Mueller uncovers. But before it could do anything, it would have to have access to Mueller’s results.
3) Absent a formal indictment, the most Mueller could do in the criminal context is name Mr. Trump as an unindicted co-conspirator in an indictment charging others with obstruction. This was the tack taken against Richard Nixon by Watergate Special Prosecutor Leon Jaworsky, but it was controversial at the time and is disfavored by DOJ policy. We cannot predict with any certainty whether Mueller might try this approach, or whether Deputy A.G. Rosenstein would approve it. Should Trump be named as an unindicted co-conspirator, that designation would formalize a legal conclusion by the Mueller prosecution team and give that conclusion a grand jury’s stamp of approval. Critically, in the course of litigating the case against those formally indicted, the facts regarding Mr. Trump’s involvement would be revealed.
4) If Mueller’s team assembles a convincing case that Mr. Trump did commit the crime of obstruction of justice, but is unwilling either to indict him or name him as an unindicted co-conspirator, there is some uncertainty about whether, and if so how, Mueller’s conclusions and supporting evidence would become available to anyone outside the Justice Department. Ordinarily, out of concern for the privacy interests of persons not charged, the Department does not disclose the facts of investigations that don’t result in charges. James Comey’s choice to discuss publicly the details of the Clinton e-mail investigation was contrary to DOJ policy and would have been a perfectly sound reason to fire him — if it had been the real reason. Moreover, DOJ regulations on the appointment of special counsel make no provision for reports to congress or the public.
All that being said, there is little, if any, doubt that a committee of the House of Representatives engaging in an impeachment inquiry could request, and if necessary subpoena, Mueller’s materials and secure his testimony about his conclusions. But, as I have observed before, no such inquiry is at all likely to occur so long as Republicans control the House. Only if Democrats flip at least the House of Representatives will any of this chatter about presidential obstruction of justice have any practical consequence.