After a sufficient interval, crises take on a momentum of their own. The miasma of scandal, thriving on political posturing and poorly-sourced press accounts, subsumes an administration under it’s own power.
White House counsel John Dean conveyed as much to a credulous Richard Nixon in March 1973 warning the embattled chief executive of a “cancer” growing on the presidency. Nixon played no part in the infamous DNC break-in of the previous year, but it seemed inevitable that the Watergate vortex would reach the Oval Office. Dean himself would betray Nixon by June of that year.
This would seem to be the current state of affairs for President Donald Trump’s White House. The president’s political opponents concede there’s little to suggest active collusion between foreign interests and his presidential campaign during last year’s general election, but his administration borders on paralysis, undone by rank speculation and self-inflicted wounds.
In this light, the allegations against the president deserve stating in sharp relief.
The Instigating Episodes
As of this writing, the inquiry concerning the president himself relates to his abrupt dismissal of former FBI Director James Comey, and his ex parte communications with Comey regarding his disgraced former National Security Advisor Michael Flynn.
There is some question as to whether these communications constitute obstruction of justice. Two incidents in particular raise this prospect. The first was the president’s Jan. 27 dinner with Comey at the White House, during which the former director alleges Trump asked him to pledge his loyalty to the administration. The implication, Comey suggested, was that the president would dismiss him absent a clear showing of his fealty, itself an assurance the White House would be protected from the Russia probe.
The second was a subsequent meeting on Feb. 14, when the president floated the prospect of leniency for his tarnished associate, Michael Flynn.
“I hope you can see your way clear to letting this go, to letting Flynn go,” the president said, according to Comey’s account of the meeting. “He is a good guy. I hope you can let this go.”
The Allegations
Some scholars argue a successful obstruction of justice case can be made on the basis of Trump’s expression of hope. Comey himself testified that he took the statement as a directive but declined to say whether it constituted a federal offense.
Other scholars disagree, arguing Trump’s statements do not evince a “corrupt mindset,” nor is it clear that he was attempting to secure an unlawful benefit for Flynn. What’s more, an obstruction charge is usually constructed around an ongoing judicial proceedings. As of this writing, it is not clear any proceeding was underway with respect to Flynn during either of the meetings described above.
The Washington Post reported that the special counsel has expanded the probe to include Trump’s exchanges with Comey. Subsequent reports disputed elements of that account. Regardless, it is difficult to imagine Mueller’s inquiry will not reach these discussions. What the special counsel will make of them is far from clear.
Should he in fact find that the president attempted to obstruct justice, it is unlikely in the extreme that Trump would be indicted. The Department of Justice (DOJ) itself does not believe a sitting president can be indicted. DOJ’s Office of Legal Counsel has repeatedly advised that a criminal indictment would unconstitutionally impair the president from fulfilling his lawful duties.
Harvard Law School Professor Akhil Reed Amar, one of the nation’s foremost scholars of the Constitution, shares this view.
As such, the appropriate venue for an obstruction case against Trump would be an impeachment proceeding. Should Mueller present a strong case for obstruction, articles of impeachment may soon follow.
The special counsel himself is at risk of aggravating a delicate situation. Should he make out a plausible case of obstruction but decline to pursue or recommend a remedy — as Comey did in announcing the FBI would not recommend criminal charges against Hillary Clinton in July 2016 — impeachment frenzy could overwhelm a weak Congress.
Other Risks
The president’s business assets risk significant exposure in the special counsel’s investigation. The probe will almost certainly involve a thorough examination of what benefits, if any, Trump-aligned businesses may have collected from Russia and its satellites, as part of a possible quid-pro-quo. At this juncture, we can only speculate as to what trajectory the investigation will follow. But Mueller has hired at least one veteran of complex financial crime prosecutions, suggesting he is prepared to untangle the Gordian knot that is the Trump business empire.
And in the end, the indiscretions of decades past could do Trump in long before Moscow does.
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