By now you’ve likely read some of the smartest legal analysis about President Trump’s ill-advised, ill-tempered, ill-fated push to fire special counsel Robert Mueller. You know that one may “obstruct justice” even if there is no underlying crime being “obstructed.” You know that reasonable experts disagree on the definition of “corrupt intent” under federal law and whether the president manifests it during his frequent bouts of frustration and rage. This month’s rendering of last June’s episode reads like the old joke about lawyers: ask three of them for advice and you’ll get four different opinions.
Let’s get meta for a second. There are a few foundational truths at play here that are worth remembering as this saga moves forward. One is that we are dealing with a president who does not appear to have the intellectual or emotional capacity to understand or acknowledge the limits of his constitutional power. So long as Trump considers it “his” Justice Department, so long as he is prone to childlike fits when he can’t get his way, so long as he contorts the truth so relentlessly, the president is going to continue to engage in patterns and practices that look and sound like obstruction of justice. The president in this sense is, and always has been, his own worst enemy. That’s not going to change during this crucial year.
When it comes to obstruction of justice and lying, we are sailing again into unchartered waters. And that’s not just because we don’t yet know precisely where Mueller and company are going to land when their investigation is done. Alan Dershowitz aside, earnest professors and practitioners who have spent their careers studying the intersection of law and politics are struggling for clarity today because no administration, not even the Harding administration, has ever been as manifestly corrupt as this one. And not just corrupt, but corrupt without evident remorse. What’s happening is new. And new things mean old precedents may or may not apply.
We don’t need to wait for Mueller’s report for proof of this. There is plenty already in the public record to support such a conclusion. The president lies so much, in such reckless ways, about so many material things, and we uneasily joke about it. His attorney general, Jeff Sessions, has ginned up so many different stories about his Russian contacts that he might be a more suitable candidate for an obstruction charge than his boss. Jared Kushner? Donald Trump, Jr.? They may end up being indicted for misconduct that has nothing to do with the Trump team’s Russian collusion. If Mueller were to write a report that focused only on the financial and ethical conflicts swirling through the White House, it might be enough to sustain criminal charges or even impeachment proceedings.
In normal circumstances, these people would have been fired or forced to resign for the ways in which they have sullied the credibility of their administration. Instead, the White House remains publicly defiant even as it crumbles from within. In its simplest form, the story from here comes down to these simple questions: Who are you going to believe, who is more likely to act with honor and integrity, who has more to gain by lying, Donald Trump or Robert Mueller?
Republican efforts to muddy the legal waters for political gain help explain why so many legal experts are coming to so many different conclusions about how this story plays out. No administration, not even the Nixon administration, has acted so recklessly, in such public fashion, and no Congress in memory has been so supine in its response. There is the reason why there is so little legal and political precedent to rely on for answers. Our “norms” until now have prevented the constitutional crisis into which we have slipped. Think Nixon-era Congressional Republican would have jeopardized classified material by ginning up a silly memo to undermine the FBI’s credibility on behalf of their embattled president? Me neither. Do you trust Justice Neil Gorsuch to render impartial justice here? Neither do I.
Which brings us to the other immutable truth here: this scandal is far more likely to be resolved by the exercise of raw political power than by a judicious application of the rule of law. It is far more likely to be resolved on Capitol Hill than at the U.S. Supreme Court. Congressional Republicans could in a day end the drama over Robert Mueller’s investigation by providing him with legislative protection from the president’s tantrums. In that same day, those same lawmakers could rein in Rep. Devin Nunes, the House Republican who gives relentless aid and comfort to the enemy. The fact that many Republicans seem to be edging closer to Trump and away from Mueller even as more incriminating evidence emerges about the way the Trump White House operates is what makes this scandal far more dangerous and less predictable than Watergate. On that, every legal analyst should be able to agree.