With the news that Donald Trump ordered his White House counsel to fire special prosecutor Robert Mueller, we’re going to hear a lot of talk about the case for the president’s obstruction of justice. Two words stand out as critical when it comes to making the legal case: “criminal intent.” In other words, a defendant’s actions aren’t enough to prove obstruction, prosecutors have to prove that the actions were taken with a criminal intent to obstruct.
In writing about the latest news, journalists at the Washington Post talked to white-collar criminal defense attorney Jacob Frenkel, who previously worked in the Office of Independent Counsel.
“In the jigsaw puzzle of circumstantial evidence of criminal intent, these are more pieces that Mueller certainly would use,” Frenkel said. “You build it around the timing.”
The president’s attorneys will probably try to argue that Trump was merely responding to current events, without intending to impede anything, Frenkel added.
“The defense would be this was merely an emotional response that’s reflective of the frustration about the ongoing investigation and its distraction from the ability to govern,” he said.
To the extent that timing is the issue, it is helpful to recall some of the events that were happening in June around the time that Trump ordered McGahn to fire Mueller. The thing that stands out is the fact that former FBI Director James Comey testified before the Senate Intelligence Committee on June 8th. It was during that hearing that Comey talked publicly about events that had been reported in the press, such as the dinner where Trump asked for loyalty and the private meeting in which the president asked the FBI Director to drop the case against Michael Flynn. In other words, Comey’s testimony was primarily concerned with Trump’s attempt to obstruct justice in his own firing.
That sounds like the case the president’s lawyers would use to prove that his was “an emotional response that’s reflective of the frustration about the ongoing investigation.” But there’s a catch, as Renato Mariotti writes:
Trump’s desire to fire Mueller despite knowing that firing a law enforcement official overseeing the Russia investigation could raise obstruction concerns is strong evidence that Trump’s intent was to obstruct the investigation.
Instead of zeroing in on Trump’s reaction to Comey’s testimony, Mariotti suggests that the critical factor is whether or not McGahn warned the president that firing the FBI Director could put him in legal jeopardy.
…according to the New York Times, Mueller has an early draft of a letter drafted by Trump aide Stephen Miller at Trump’s direction offering an unvarnished view of Trump’s thinking regarding the firing of Comey. The Times and Post also reported that McGahn expressed concerns to Trump about the letter, and the Times noted that McGahn gave Miller a marked-up copy of the letter, highlighting sections that he wanted removed.
McGahn’s advice to Trump will be crucial. Did the White House counsel tell Trump that firing Comey could put him in legal jeopardy? That would strengthen Mueller’s case. Or did McGahn express concerns only about the political fallout? That might weaken Mueller’s case, because Trump could argue that he sought his lawyer’s advice and his lawyer did not advise him that firing Comey could put him in legal jeopardy. That’s called an “advice of counsel” defense. McGahn’s advice, along with the advice of others to Trump, could be the most important evidence in the obstruction investigation.
In addition to all of that, there are a couple of other events that happened in early June that are worth keeping in mind. They have to do with announcements about the team of lawyers Mueller was assembling for his investigation. The first came on June 6th.
Special counsel Robert Mueller is assembling a prosecution team with decades of experience going after everything from Watergate to the Mafia to Enron as he digs in for a lengthy probe into possible collusion between Russia and President Donald Trump’s 2016 campaign.
His first appointments — tapping longtime law-firm partner James Quarles and Andrew Weissmann, the head of the Justice Department’s criminal fraud unit — were the opening moves in a politically red-hot criminal case that has upended the opening months of the Trump White House.
We heard about the second on June 9th.
My word, he's putting together a serious team. Dreeben the guy you add to think thru hard criminal q's like obstruction by a sitting POTUS. https://t.co/cTuLChNTHK
— Matthew Miller (@matthewamiller) June 9, 2017
To the extent that Trump was concerned about obstruction charges and/or a probe into his business and financial dealings, these announcements would have signaled that he was in big trouble—adding to the specter of criminal intent as a reason to fire Mueller.
One final piece of evidence on the matter of criminal intent that I haven’t seen mentioned anywhere is that Donald Trump and his lawyer lied about the president’s attempt to fire Mueller.
August 8, 2017 — Trump lawyer John Dowd denies that the President has ever considered firing Mueller in a report from USA Today.
“That’s never been on the table, never,” Dowd said, according to USA Today. “It’s a manifestation of the media. My dealings with Bob Mueller have always been cordial, respectful — the way it should be.”
August 10, 2017 — Trump himself tells reporters in Bedminster, New Jersey, that he hasn’t considered firing Mueller.
“I haven’t given it any thought. I mean, I’ve been reading about it from you people. You say, oh, I’m going to dismiss him. No, I’m not dismissing anybody.
Of course, all of that is concerned with the legal case for obstruction of justice and we all know that, should anything come of Mueller’s investigation, it is more likely to be impeachment hearings. Those are by nature more political than legal. But I doubt that is the concern of the special prosecutor right now. He’s obviously building a legal case (as prosecutors are trained to do) and has a lot of material to work with when it comes to obstruction of justice charges.