The buzz has been that sooner or later Trump will have to face 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 he wouldn’t, he gave him the ax. This would make a case for obstruction of justice. That 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. 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’s publicly boasted that he’d 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’s said out of the other side of his mouth, it’s all a politically inspired witch hunt 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 quashed. They would play the Nixon-Watergate card. They’d 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 which a president can claim are confidential and sensitive and in some way concern matters of national security. Trump’s attorney will simply say there are no documents that directly tie Trump to the Russians and the election.
The real problem with making an obstruction of justice charge stick is proving 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.
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, 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 on his turf. Trump would smugly take comfort that the election tampering angle is near 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 charge against him.
In the end, it’s just that, all talk.
Earl Ofari Hutchinson is an author and political analyst. He is an associate editor of New America Media. 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 he is the host of “The Hutchinson Report,” heard weekly on KPFK, 90.7 FM, Los Angeles, and the Pacifica Network.