The Dam Is Weak, But Can Mueller Make An Obstruction Of Justice Charge Stick?

GABRIELLA DEMCZUK / THE NEW YORK TIMES

The routine is, by now, numbingly familiar.  First, a newspaper breaks a deeply sourced story -- in this case the recent New York Times blockbuster on Donald Trump ordering the firing of Special Prosecutor Robert Mueller last June and backing off only after his White House counsel threatened to resign.  Second, the story is followed by a mush-mouthed non-denial by Trump's beleaguered criminal lawyers as the boss paints them into an ever-tighter corner.  And then finally the boss himself waddles in, invariably invoking the claim that the story is "fake news."

Yet as explosive as The Times story was, it was merely (my word) yet another piece of damning evidence "in the now overwhelming case of obstruction of justice that Mr. Mueller has assembled," as a former federal prosecutor and deputy attorney general put it.   

So why aren't we dancing in the streets? 

Because as formidable as the case Mueller has assembled may be and as isolated as Trump seems to have become even as his Republican congressional sycophancy dances ever more frantically around the boiling pot in which they would like to stew the special counsel like a primitive tribe making a sacrificial offering to their god with the peculiar orange hair, claims of fake news and repeatedly lying will not hasten the end of the Trump presidency. 

It is probable that Trump has never uttered a truthful word about the Russia scandal. And while two people (campaign manager Paul Manafort and foreign policy gofer George Papadopoulos) have been indicted by Mueller's grand jury for lying in what may become a flood of perjury charges that sweep up other campaign and West Wing perps, the special prosecutor will have to prove that Trump intended to obstruct justice and that intent was corrupt.     

As persuasive as the obstruction incidents may seem, they still are not conclusive proof of obstruction.  And as slopes go, this particular one could become exceedingly slippery. 

This is because the sustained pattern of lying about the Trump's campaign's numerous contacts with Russians probably was done by design, and the same inner circle (think the vulpine Kellyanne Conway for starters) that has helped the president hone the "fake news" canard to surgical acuity understands that motoring around the truth -- that Trump made a sustained effort to rein in the FBI's Russia investigation through guile and intimidation and did eventually fire James Comey -- by arguing that the president is a windbag may be a tenable, if seemingly desperate strategy.  The president, they will explain, Your Honor, blusters about everything 24/7, so what Mueller and we see as obstruction of justice is merely Trump being his bloviating self.  Besides whch, he was merely (in his own words) "fighting back." 

Call it the Loudmouth Defense, which is not dissimilar to another by-now familiar defense repeatedly offered with the straightest of faces: The campaign was so dysfunctional and its key players so inept that they could not have colluded with the Kremlin even had they wanted to.

Then there are the strange rationales Trump has pulled out of his red MAGA cap, or rather gotten from those beleaguered lawyers, to counter The Times story: Mueller had quit Trump National Golf Club in Virginia in 2011 over a dispute about fees.  Mueller could not be impartial because he worked for a law firm that represented son-in-outlaw Jared Kushner.  And Mueller had been interviewed to return as FBI director the day before Deputy Attorney General Rod Rosenstein named him special counsel, which may be news to Mueller. 

The real reason, of course, is that Trump feared that three of his worst nightmares were coming to pass -- not receiving the loyalty he demands, losing control of events and having his and his family's problematic finances examined.    

WE CAN TAKE SMALL COMFORT in the reality that Trump can't fire Mueller like he is some contestant on "The Apprentice."  At least some of Trump's handlers -- including White House counsel Donald McGahn -- understand that. 

It was McGahn who, according to The Times, threatened to quit if Trump followed through on his demand that Mueller be fired.  Somewhat lost in the excitement over the story was that it was a twofer.  Trump also demanded that Rosenstein get the ax.  And before we get all fuzzy over McGahn's apparent altruism, remember that he's at the very apex of the obstruction efforts, could be disbarred for not having reported them, and may yet be indicted himself.  (Just ask John Dean, Richard Nixon's White House counsel, about what can happen if you allow yourself to get sucked into a president's intrigues.)  

Firing Mueller would itself constitute obstruction.  Even if those congressional Republicans continue to turn a deaf ear to Democratic demands in the wake of The Times story that two bipartisan bills to protect Mueller from Trump be resuscitated and Mueller gets the heave-ho, the long-anticipated constitutional crisis (a term I've used a bloody 13 times in the past year) finally would be upon us. 

ALL THESE CONSIDERATIONS ASIDE, the dam is weak and could break at any time.  Even those Republicans dancing around that pot in the Capitol Hill jungle know that they're running out of time, let alone outlandish conspiracy theories like the one about a secret FBI society determined to take down the Trump presidency.  Yes, the very people who because of the Clinton email investigation may have done more than anyone this side of Red Square to create the Trump presidency actually are intent on destroying it.   

Oh, and by the way, the Republican congressional leadership is complicit in Trump's obstructionism by not just refusing to do their constitutional mandated duty, but by helping build the fire under that pot because of their silence.

Never has a fool been suffered so gladly. 

My own dam-breaking hole card is that Trump will snap, crackle and pop if Mueller indicts Kushner and elder son Donald Jr., which he probably can do for a number of reasons, the juiciest being the infamous June 9, 2016 Trump Tower meeting of the campaign brain trust called by Donald Jr. for the expressed purpose of getting Russian government "dirt" on Hillary Clinton.  The other non-Russian players at that meeting were Kushner and Manafort, who is said to have taken contemporaneous notes of the sitdown on his cellphone, has been indicted on a slew of money laundering and tax and foreign lobbying violations, and may yet be ripe for flipping.     

Then there is the looming prospect of a presidential interview with the special prosecutor, which on odd days Trump says he is "looking forward" to, perhaps under oath, but on even days says he'll defer to his lawyers.  (Did I say they were beleaguered?)   

Amy Davidson Sorkin divinely describes the prospect of a chat with the special prosecutor in The New Yorker:

[I]f he does sit down with Mueller's team, once the first question is asked there will be an interval of silence that only the President can choose how to fill.  Will he try to turn the interview against Mueller?  If Trump thinks that Mueller can be scared off by the prospect of being fired, however, he will have misunderstood not only the laws that restrain any President but the terms of his own employment.  This time, Trump could be the one to lose his job.

We can only hope.

Click HERE for a comprehensive timeline of the Russia scandal.