President Donald Trump’s associates on Friday brushed off a New York Times article detailing Trump’s attempted interventions into the Justice Department’s Russia probe as overblown, and rejected claims that it shows Trump tried to obstruct justice.
“Another NYT nothing burger,” Trump’s personal attorney, John Dowd, said in an email.
But legal scholars say the report, which dominated cable television since it appeared online Thursday night, reveals insights into Trump’s motives and intent — critical elements to any potential finding of obstruction of justice by special counsel Robert Mueller, who is probing Russia’s interference in the 2016 election.
“Trump’s motive will matter,” said Barbara McQuade, a former U.S. attorney from eastern Michigan.
McQuade cited the Times’s descriptions of Trump’s efforts to persuade Attorney General Jeff Sessions not to recuse himself from the Russia investigation early last year as potentially key evidence supporting a conspiracy to obstruct justice.
“If Trump wanted to keep Sessions in charge of the Russia investigation so that he could protect Trump, then trying to prevent him from complying with the DOJ recusal rules could provide a strong case for obstruction,” she said.
Other legal scholars agreed. Former Watergate prosecutor Nick Akerman said the combination of revelations in the Times story supplied a potent public addition “to what is becoming overwhelming evidence of Trump’s corrupt intent to put an end to the Russian investigation in which he and his family members are clearly subjects.”
The article’s top finding -- Trump instructed White House Counsel Don McGahn last March to stop Sessions from recusing himself from the Russia investigation – isn’t the only big revelation. It also alleges that an unnamed Sessions aide sought damaging information on then-FBI director James Comey that could be planted in the media – a description that a Justice Department spokeswoman denied. Trump fired Comey in May.
“Explosive evidence of obstruction — and imminent danger to Special Counsel,” Democratic Sen. Richard Blumenthal, a member of the Senate Judiciary Committee wrote on Twitter Friday morning, adding: “White House Staff need to testify before grand jury.”
Despite the political fallout, experts cautioned that obstruction of justice is difficult to establish and that nothing in the Times article constitutes a smoking gun.
Many legal scholars also doubt that Trump could be in actual legal jeopardy to begin with, saying that the debate surrounding Bill Clinton’s impeachment largely settled the idea that a president cannot be charged for a crime while still in office. Although the Supreme Court hasn’t addressed the question directly, a 2000 Justice Department legal memo concluded that the indictment or criminal prosecution of a sitting president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Moreover there is little sign that a Republican-led Congress would act should Mueller refer to them a case for impeachment against Trump.
Still, the Times article states Mueller has gathered more evidence surrounding the obstruction questions involving the president than he has over any collusion between Trump’s campaign and Moscow.
It is also the latest evidence that the special counsel is still far from finishing his work, despite claims by Trump’s lawyers that he might wrap up his probe as early as this winter.
Several Democrats said the article warrants new congressional testimony from people in the president’s orbit, including Sessions and the president’s oldest son, Donald Trump Jr.
They also called for hearings involving McGahn and Mark Corallo, a former Trump legal spokesman whose resignation last summer was tied in a new book published Friday by author Michael Wolff to the president’s role in crafting a misleading statement to the press about a meeting several Trump campaign officials, including Donald Trump Jr., had with a Russian attorney who was promising dirt on 2016 Democratic presidential nominee Hillary Clinton.
The Times story included a number of key details beyond Trump’s instruction to McGahn to stop Sessions from recusing himself from the Russia probe. After McGahn backed down, the newspaper said Trump “erupted in anger in front of numerous White House officials.”
“Where’s my Roy Cohn?” the president reportedly said, making a reference to his former personal lawyer and longtime political adviser who had worked in the 1950s as an aide to Sen. Joseph McCarthy during congressional investigations into communist activity.
Also revealed in the Times story: White House lawyer Uttam Dhillon purposefully misled Trump about whether he could legally fire Comey; Trump wanted to call the Russia probe out as “fabricated and politically motivated” in a letter to Comey that would publicly justify his firing, though White House staff stopped that reference; and Mueller has obtained former White House chief of staff Reince Priebus’ handwritten notes that show Trump talked to Priebus about how he had called Comey to urge him to say publicly that he was not under investigation.
Rep. Jerrod Nadler, the ranking member of the House Judiciary Committee, cited the Times story in a call for McGahn to “be removed from his post immediately.”’
“It is not the duty of the White House counsel to be the President's Roy Cohn, as Donald Trump would have it, but to protect and defend the Constitution — which Mr. McGahn seems to be failing to do,” added Nadler, a New York Democrat.
Michael Zeldin, a former federal prosecutor who worked with worked for Mueller at the Justice Department, said the most important new detail in the Times story centered around the fact Mueller has obtained Priebus’s notes about his conversations with the president. Those notes could corroborate Comey’s Congressional testimony last June detailing the president’s interference in the ongoing Russia investigation, Zeldin said, including Trump’s request that Comey drop an investigation into his former national security adviser, Michael Flynn.
Trump has publicly denied asking Comey to drop the case against Flynn. But Zeldin said the president still faces a potentially perilous dynamic if he ends up being placed under oath as a witness in the special counsel’s probe. A White House official told POLITICO last fall that Trump lawyers were open to that high-stakes scenario, because it could help Mueller wrap up the probe faster.
“If, and when, Trump testifies he would appear to be at increased risk of making false statements if he holds to his public statements that he did not have substantive conversations with Comey about loyalty, the scope of the investigation and, possibly, standing down on Flynn,” said Zeldin, who added that much depends on what Priebus, FBI Deputy Director Andrew McCabe and others have already told Mueller.
The Times story isn’t the first to break ground on the prospects of a presidential obstruction probe centered around Comey’s firing. Trump himself told NBC’s Lester Holt in mid-May that he had been thinking about “this Russia thing” when he ousted Comey. The New York Times that month also said the president had told Russian officials visiting the Oval Office that firing Comey had relieved “great pressure” due to the investigation, while the Washington Post reported that Trump had asked both Dan Coats, the director of national intelligence, and National Security Agency Director Michael Rogers, to deny evidence of collusion.
According to Comey’s testimony in June before the Senate Intelligence Committee, Trump last Valentine’s Day had also cleared the Oval Office of senior staff and urged the FBI director to “let this go” with respect to the Flynn investigation.
Several legal experts said the Times report is useful because it adds additional context to the story surrounding obstruction that was apparent in last year’s media accounts and public testimony.
“The story adds interesting detail to a reported narrative already largely in place. It was clear that the president was enraged with Sessions for not recusing himself, and with Comey for at least a couple of reasons,” said Robert Bauer, the former White House counsel for President Barack Obama. “Now that we know that Flynn lied to the FBI about his December 2016 conversation with the Russian Ambassador, but do not know what the president knew about the lie or when, this seems another critical question in evaluating the basis for an obstruction investigation arising out of the Comey firing.”
Others cautioned against reading too much into the Times’ story.
Patrick Cotter, a former assistant U.S. attorney who has worked with Mueller prosecutor Andrew Weissmann, said the article describing the Sessions-McGahn interaction “was highly inappropriate, foolish and contributes additional supportive evidence as to Trump’s intent re: the Russia investigation.”
“But it does not seem to me to rise to the level of a crime in and of itself,” he added.
Julie Myers Wood, a former deputy on Kenneth Starr’s independent counsel investigation into Clinton, said she too say noting afoul about a Sessions-McGahn conversation.
“It’s certainly appropriate for the WH counsel to have factual discussions with the AG regarding his role and any potential reasons for recusal,” she wrote in an email. “Lobbying on recusal issues may be unwise, but if done in good faith, does not constitute an attempt to obstruct.”
What Mueller plans to do with any obstruction evidence remains far from clear. Legal experts say that revelations like what is in the Times report may matter more in influencing the court of public opinion – and voters’ decisions next November -- than in any court room.
But while many legal experts are convinced Mueller will opt against indicting Trump with an obstruction crime, Cotter said he doesn’t think the debate over a president’s criminal liability has been settled. The growing body of evidence that’s being made public in stories like the one the Times published, he said, could lend itself to Mueller pushing forward on that track.
“That would be a way to get the allegations into the hands of the public and avoid any efforts by the White House/Justice Department/Congress to keep them in some sense secret,” Cotter said in an email. “It would also settle an important open legal question.”
Another option for Mueller -- charging others surrounding Trump for obstruction of justice, while naming the president as an unindicted co-conspirator – could set the stage for an explosive clash because it “would serve as an excellent vehicle for Trump to then pardon all the identified co-conspirators,” he said.
“If he were a defendant, and pardoned everybody in the indictment, that would be an obscene obstruction of justice for his own personal benefit and Congress would be hard pressed not to impeach,” Cotter said. “But if he isn’t actually named a defendant, and so is not in personal danger, it becomes at least slightly more defensible for him to pardon everyone while still saying he is not doing it for his own personal benefit.”