The latest “bombshell” news regarding President Trump and the Russia investigation is a report, based on leaks from anonymous officials, that special counsel Robert Mueller is now “investigating” Trump for possible obstruction of justice. This is hardly surprising. Allegations of obstruction by Trump are rampant and fall squarely within Mueller’s responsibility. He couldn’t very well simply ignore them. Moreover, there are some factual issues that need to be tied down.[1] But does the investigation pose real danger for Trump? That probably depends on him. Trump likely has nothing to fear from the underlying issues Mueller is investigating. On the other hand, Trump’s conduct as the investigation proceeds could very well bring him down.
Presumably, the two issues Mueller is looking at regarding Trump are possible collusion with the Russians over their election meddling and obstruction of justice. Based on an objective analysis of what’s publicly known so far, particularly former FBI director Comey’s testimony before the Senate Select Committee on Intelligence, there appears to be no basis for criminal charges on either issue, assuming Trump could be charged.[2] Nor are there any credible grounds for impeachment.
Evidently there is not now and never has been anything to the Trump-Russia collusion issue. The cascade of leaks concerning the broad Russia investigation hint that it now focuses on contacts between Trump associates and the Russians that have nothing to do with election-meddling. Even Trump’s opponents seem to have largely abandoned the election collusion issue, concentrating instead on the issue of possible obstruction of justice from Trump’s interactions with Comey.
With regard to the obstruction issue, Comey’s testimony before the Intelligence Committee confirms that Trump repeatedly violated norms of presidential behavior and then lied about it. However, what Comey presented falls well short of making a case for obstruction of justice either on the facts or the law. Mueller probably already recognizes this. Comey reportedly consulted with Mueller in advance of his testimony. It’s hard to believe that Mueller would permit Comey to testify about his interactions with Trump at a public congressional hearing if Mueller thought this subject would be a significant part of his investigation. Also, if Mueller anticipated that the Trump-Comey interactions would be important to the investigation, he might well have declined to serve as special counsel given his close friendship with Comey. While this friendship would not be legally disqualifying, it might present a serious appearance problem for a straight arrow like Mueller.
Mueller’s investigation likely will drag on for a long time and veer off into secondary issues, as special counsel investigations typically do. No doubt it will be a significant distraction for the Trump administration at the least, and it could even lead to charges of one kind or another against persons associated with Trump. However, barring the discovery of striking new evidence, Mueller’s investigation is unlikely to pose any legal or dire political threat to Trump himself—if Trump allows it to run its course and if he cooperates honestly with it.
The problem for Trump is that these are very big “ifs.” Trump has repeatedly proven himself to be a master practitioner of foolish and self-defeating behavior. He’s already started down this road with regard to the Mueller investigation, lashing out at Deputy Attorney General Rosenstein and Mueller. His surrogates are actively challenging Mueller’s objectivity. If Trump continues these tactics, and particularly if he escalates them by firing Mueller and other Justice Department officials left and right, he will likely encounter widespread public outrage and, consequently, existential political problems from both Democrats and Republicans. Clearly, the best strategy for Trump in terms of his own self-interest is to stay out of the way of the investigation as much as possible, say as little as possible about it, and cooperate forthrightly to the extent he must get involved. Given his temperament, all of these things probably represent major challenges for Trump.
The area of greatest legal risk for Trump is the specter of testifying under oath in a deposition before Mueller, or even more dangerously, before a grand jury. A face-off between Trump and Mueller’s forces in such a setting would be a potential disaster for Trump. Trump is an impulsive person whose default option seems to be lying his way out of adversarial situations. He apparently lacks the personal discipline to restrain himself or the sense to take advice from those who seek to restrain him. If called upon to testify, Trump will need to act completely against all of his instincts and scrupulously adhere to the absolute truth (and in the process contradict many of his prior apparently false statements). This may be an insurmountable challenge for him. Trump has offered to provide sworn testimony in the investigation. He might want to reconsider and offer testimony only if specifically asked. If he is asked and complies, it’s hard to see how this would end well for him.
[1] For example, other reported leaks from unnamed officials allege that Trump requested Director of National Intelligence Daniel Coats and National Security Agency Director Mike Rogers to ask former FBI Director Comey to end the Michael Flynn false statements investigation. At a recent congressional hearing, the two officials declined to discuss their conversations with Trump but testified that they did not feel pressured by him.
[2] The Justice Department has long maintained that a sitting president cannot be subjected to criminal prosecution.