On Thursday night, the New York Times reported that President Trump attempted to fire the special counsel for the Russia inquiry, Robert Mueller. The effort failed after Donald McGahn, the White House counsel, said he would resign rather than order Rod Rosenstein, the deputy attorney general, to get rid of Mueller.
To discuss what this blockbuster story means for the Russia investigation, and specifically for any possible obstruction of justice case against the president, I spoke by phone with Jacob S. Frenkel, the chairman of the government investigations and white collar practice at the law firm Dickinson Wright and a former federal prosecutor who was an associate independent counsel in the investigation of Secretary of Agriculture Mike Espy. Our conversation has been edited and condensed for clarity.
Isaac Chotiner: How does this news play into any possible obstruction case against the president?
Jacob S. Frenkel: It is difficult to tell because in an obstruction case you still need to prove intent. I think what is most likely is that, if we look at circumstantial evidence, which is often used to prove intent, as a jigsaw puzzle—that this is another piece in the puzzle that Bob Mueller would use. Is this stand-alone probative? In my view: no.
A lot of statements are subject to interpretation. It is much easier to be working with a statement made to a law enforcement official, or a statement under oath, when you are trying to charge someone, rather than a comment—no matter how strong it may sound or appear on its face.
As far as we know, the strongest aspect of an obstruction case would be the Comey firing. But Comey was someone in a job that the president hires for, and his lawyers would argue that firing the FBI director was under the purview of his presidency. Would firing Mueller be any different?
It’s a great question. In both scenarios, you are talking about the investigation and an allegation that relates to obstruction of justice. The fundamental concept of the obstruction is of the investigation. It isn’t about individuals. So the compilation of evidence that a prosecutor such as Bob Mueller would be putting together is a pattern of activities that would demonstrate a desire to interfere with or obstruct the investigation.
With respect to the threat relating to firing Bob Mueller, the timing of that statement really can be interpreted both ways. That is: On the one hand, it was early in the investigation, and at a point where it was becoming clear to the president how the investigation was both taking shape and could be focused on him, as well as those close to him. Yet at the same time, it was also at a time when Trump was new to the political dynamic, such that his lawyers can argue that these were words of frustration and irritation, but the fact that he did not actually act on his words is probative.
What do you mean by that?
The fact that he did not act on his words and actually follow through and fire Bob Mueller—his lawyers would argue that it was a president venting rather than actually taking steps to interfere with the investigation.
What do you think of that argument?
What I think of that argument really doesn’t matter. What matters is what a jury would think of the argument. What really matters is the fact that you could argue a statement like that both ways—and that means that there is not enough there for such a statement alone to meet the beyond a reasonable doubt standard.
Right, although with Comey he didn’t just vent. He did it.
Right, no question, Comey he actually did it, and that is why I think if—and we have to stress the word if—there ever were to be charges, I think we are more likely to see them around the Comey firing.
When you read a story like the one that came out Thursday, did anything strike you in particular that may not have struck a non-lawyer with experience in these matters?
The first thing that really jumped out at me is that there is such a desire to seize on the president’s words in a context that is not an interview with law enforcement, in a context that is not part of a statement in the investigation, that I see where the defense readily can attack the meaning and intent.
The other thing that jumped out to me right away was the appropriate response of the White House counsel, which is that regardless of the frustration or whether there was intent, the White House counsel responded appropriately to the words the president chose, regardless of his intent underlying the words. When I read this, as I read a lot of things over the months of the investigation, I look at this as all pieces that Bob Mueller is going to dissect like a surgeon, and only at the very end reach his conclusion and see whether in sum there is a case.
This is maybe more anecdotal, but having been part of this type of investigation, there tends to be a reaction to every piece of evidence that comes out. A properly conducted investigation reaches no conclusion until the very end, regardless of how the evidence may seem along the way.
If you were part of Mueller’s team, or if you were Mueller, and you know who the president is, and you know what might happen to your investigation, do you speed things up? Do you have some sort of plan for what might happen?
I think Bob Mueller has handled this investigation appropriately. He has set the tone and the speed and worked diligently to maintain the confidences that should exist in this investigation. If you compare what Mueller is doing to Congress, they are polar opposites. The congressional approach is to showcase whatever is coming in. The proper way to conduct an investigation is methodically.
So you don’t speed it up?
You do not speed up such an investigation for political expediency or a fear you may be replaced. Let’s not forget the fact that we have the Manafort and Gates cases that have to go to trial. This investigation is going to be around until they reach their final resolution. This investigation is not going away anytime soon, and while there is a lot of talk about Mueller being almost finished interviewing who he needs to interview, if he needs to interview someone a second or third time, you can presume that he will do that to insure he has a correct and complete record on which to make a prosecutorial or recommendation decision.
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