In coming days and weeks, we should all do whatever we can to ensure that every Republican member of Congress, in town hall meetings, via social media and during media scrums, is asked the following question:
If President Donald Trump tries to remove special counsel Robert S. Mueller III, would you view that as an impeachable offense?
Trump’s lawyer, John Dowd, just gave an interview to Axios in which he floated the idea that the president, by definition, cannot obstruct justice, “because he is the chief law enforcement officer” and “has every right to express his view of any case.”
Trump’s lawyers had previously argued to Mueller that Trump did not obstruct justice (a possibility that Mueller is examining) when he fired former FBI director James Comey out of anger over the Russia probe, because he has the constitutional authority to hire and fire as he sees fit. Experts have challenged this claim, noting that even if Trump has this authority, he cannot exercise it for a corrupt purpose. Regardless, this would not have to be a crime to constitute an impeachable offense.
But in any event, Dowd’s new argument appears to go farther than that. It doesn’t address just Trump’s previous conduct toward Comey. The notion that Trump can “express his view of any case” could theoretically be applicable as a justification for any future actions Trump might take toward the investigation.
“Dowd is basically arguing that as the chief law enforcement officer, Trump has the authority to block investigations into himself, his allies, and into his friends, and nothing he does can be construed as obstruction of justice,” Matthew Miller, a former Justice Department spokesman, told me Monday morning. “The logical extension of all this is that Trump can try to remove Mueller and it would be entirely legitimate.”
Let’s put this in the context of the events of the past several days. After it was announced that former national security adviser Michael Flynn has made a plea deal with Mueller in which he’s providing information about the Trump transition team’s various activities, Trump unleashed an extraordinary stream of tweets blasting the FBI as “in tatters.” He hammered the FBI for failing to sufficiently investigate Hillary Clinton under Comey and vowed to bring the FBI “back to greatness.”
In saying all these things, Trump is amplifying a narrative that his media allies have banged away at in recent weeks, one designed to goad Trump into going full authoritarian. The basic idea is that Mueller and the FBI are themselves corrupt – Clinton is not being investigated, but Trump’s campaign is – so the only way to set things right is to close down Mueller’s probe. If Miller is correct, then Dowd’s new quote may telegraph an argument that might be used to justify this, and Trump’s vow to bring the FBI “back to greatness” can also be read as a hint at this possibility.
Meanwhile, Trump also tweeted that he had originally had to fire Flynn because he had “lied to the FBI,” which immediately raised further questions about potential obstruction. It suggests Trump knew this even as he demanded that Comey drop the investigation into Flynn, as Comey testified he did, though Dowd subsequently claimed this isn’t what Trump meant. At the same time, Flynn’s cooperation appears to be shedding light on the possibility that Trump’s top advisers, or even Trump himself, directed him to contact Russia before he was president. This could constitute undermining then-current U.S. foreign policy in ways that some legal experts suggest could have been illegal or could form the grounds for impeachment (not that Republicans would agree, naturally).
The bottom line: Trump’s legal and/or political exposure – and that of his top advisers – appears to have grown. And given Trump’s response, so too has the possibility that he will try to put a stop to the investigation. We don’t know whether Trump will go this route. But the point is that the groundwork for this course of action has been laid, should he choose it. Trump’s lawyers have said this isn’t being discussed. But Dowd should now be pressed to elaborate on his new quote in this context.
It is plausible that Trump will hesitate before trying to remove Mueller, if only out of self-interest. But for this to be the case, Trump needs to be persuaded that there will be a serious downside to doing so. As The Post recently reported, Trump has “internalized the belief that he can largely act with impunity,” in part because no matter what he does, “Republican leaders largely stand by him.”
Multiple GOP lawmakers have said Mueller’s probe should be allowed to proceed. But that isn’t enough. We should all do our part to ensure that they are pressed on whether Trump will face actual consequences if he tries to prevent that from happening.
The Washington Post