The following article by Aaron Blake was posted on the Washington Post website May 1, 2018:
With the term whirling around Washington, a former federal prosecutor explains what to know about the criminal charge of obstruction of justice. (Jenny Starrs/The Washington Post)
President Trump isn’t happy that questions Robert S. Mueller III wants to ask him have leaked to the media. But his reaction to the situation seems to betray a real lack of understanding of the legal trouble he faces. Either that or he’s deliberately misleading us.
First off, Trump tweeted that he was very upset about the leak of the information, but he ignores the fact that it came not from Mueller’s side, but apparently from his own.
Donald J. Trump
✔@realDonaldTrump
So disgraceful that the questions concerning the Russian Witch Hunt were “leaked” to the media. No questions on Collusion. Oh, I see…you have a made up, phony crime, Collusion, that never existed, and an investigation begun with illegally leaked classified information. Nice!
Here’s how the New York Times sourced the information:
“What efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?” Mr. Mueller planned to ask, according to questions read by the special counsel investigators to the president’s lawyers, who compiled them into a list. That document was provided to The Times by a person outside Mr. Trump’s legal team.
At the very least, Trump’s legal team appears to have been careless with this information.
Secondly, Trump insists there were “No questions on collusion.” Except that’s completely, 100 percent untrue. While no question in the list obtained by the Times mentioned the word “collusion,” several of them clearly alluded to it. Here’s a sampling (and this is only about half of the collusion-related questions):
- “During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?”
- “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”
- “What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?” (More on this here.)
- “When did you become aware of the Trump Tower meeting?” (This was when a Russian lawyer was offering dirt on Hillary Clinton.)
- “During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?” (Whether Trump met with Russian officials would seem to hint at whether they had ties.)
- “What do you know about a 2017 meeting in Seychelles involving Erik Prince?”
The third thing Trump got wrong is this bit of legal analysis:
Donald J. Trump
✔@realDonaldTrump
It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!
While it might seem that way, legally speaking the lack of an underlying crime doesn’t really have a bearing on whether obstruction of justice occurred. As long as there is an investigation, justice is being performed, and obstructing that process is a crime (though it may not be a chargeable offense for a president).
And even if that were the case, there has been a crime here. Many of Mueller’s questions have to do with former national security adviser Michael Flynn, who pleaded guilty to lying to the FBI in connection with the Russia investigation. (Other figures have also pleaded guilty to lying, but the Flynn one is key.) Trump’s actions repeatedly appeared to seek leniency for Flynn specifically when it comes to the thing he later pleaded guilty to. Whether there is collusion or some grand crime involved here, Trump’s actions did have to do with an underlying crime.
All of this said, Trump’s tweets may be less about what he really believes about the investigation and how the legal system works, and more about setting the tone for the aftermath of whatever Mueller finds. This may wind up in Congress’s hands if Mueller feels he can’t charge Trump, and Trump could be laying the groundwork for arguing (however implausibly) that there can’t be obstruction without collusion. Arguing that Mueller has moved on from collusion (however implausibly) also feeds the narrative that Mueller hasn’t actually found anything on Trump and is reaching for something to tag him with. And the contention about the leak coming from Mueller (however implausible) feeds the narrative of a corrupt investigation by the deep state.
But whether Trump doesn’t understand his legal situation or is deliberately misleading everyone about it, that’s still a sad state of affairs.