The persistent buzz has been that sooner or later President Donald Trump will have to face an inquisitorial Special Counsel Robert Mueller.
When he does, he’ll have to tell what he did in badgering former FBI Director James Comey to shut down the Russia probe. And when Comey wouldn’t shut down the probe, Trump fired him.
This would make a case for obstruction of justice, which is an indictable offense and potentially an impeachable offense. The only thing Trump says whenever someone shouts at him about the Russian election tampering probe is “no collusion,” “no collusion.”
Trump can say that with confidence for a simple reason. Why not?
Short of a smoking gun document or testimony from someone within the Trump circle who has provable knowledge of whatever alleged dealings Trump is thought to have had with the Russians on the election, he’s home free.
As to trying to nail him on an obstruction charge, the law on this is clear. An obstructer must take actions that “threatens,” “corrupts,” “impedes” or “influences,” any action that comes under the explicit proper purview of a government department or Congress. The justice obstructer must make a false statement, withhold, conceal, alter or destroy a document that obstructed the investigation.
Without an implicating document, tape or unimpeachable witness testimony, we’re back to Trump and trying to get him to talk.
By talk, that means him saying something, anything, in which he implicates himself in criminal collusion with the Russians. We’re back to Trump.
Mueller would have to politely ask him to voluntarily talk to him about his action. Trump would have to agree. If he didn’t, Mueller would then have to decide whether there is enough for him to compel him to testify. That means issuing a federal subpoena.
That’s not going to bring Trump to Mueller’s table. Yes, he has publicly boasted that he would be happy to talk to Mueller. That’s strictly for public consumption, tantamount to an alleged culprit in a crime bragging that they have nothing to hide and the allegations of wrongdoing are hogwash.
Or, in Trump’s case, as he has said out of the other side of his mouth, it’s all a politically inspired witchhunt by the liberal media and sore loser Democrats.
Trump will then throw up his hands and say that he can’t testify because his attorneys told him he couldn’t. The attorneys would quickly follow that up with an avalanche of motions to get the subpoena squashed.
They would play the Nixon-Watergate card. They would cite the Supreme Court’s 1974 decision in which the court ruled that a president can legally claim executive privilege to skip out of turning over any documents to Congress or any other branch of government.
That was Nixon’s ploy to stymie investigators from getting their hands on potentially incriminating Watergate break-in documents. The rub in this is that when and under what circumstances executive privilege can be evoked is narrow.
It does cover documents that a president claims are confidential and sensitive and in some way concerns matters of national security. Trump’s attorney will simply say there are no documents anyway that directly tie Trump to the Russians and the election.
The real problem with trying to make an obstruction of justice charge stick is trying to prove intent. So, even if Trump desperately wanted Comey to back off from any potential investigation of his Russia ties and did try to undermine such an investigation, a prosecutor would still have to prove that he deliberately and willfully used illegal means to stop Comey from an investigation, if it ever came to that.
Now there’s the faint hope that Trump is such an egomaniacal, narcissistic guy who thinks that he can say and do whatever he wants, and get away with it, that he might just defy his attorney, and legal good sense, and blab to Mueller.
Don’t bet on that. He’s not that self-absorbed that he could think that he could outfox a seasoned, top gun prosecutor. Trump would smugly take comfort that the election-tampering angle is nearly impossible to prove.
So, what would be the point of talking if he didn’t have to, and he has an arsenal of legal weapons that he can throw at Mueller to thwart any attempt to force him into testifying.
We’re back to square one. Lots of talk, speculation and hope that Trump can stumble over himself and make a case for a criminal change against him. In the end, it’s just that. All talk.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is “50 Years Later: Why the Murder of Dr. King Still Hurts” (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One and the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.