NYT: Mueller focusing on obstruction charges over Sessions recusal?

Did an unsuccessful demand from Donald Trump to Jeff Sessions constitute obstruction of justice? The New York Times reported last night that special counsel Robert Mueller has taken an interest in the series of events surrounding the recusal of the Attorney General from the Russia-collusion probe almost a year ago. If the reporting is correct, the focus of Mueller’s investigation appears to have shifted away from the core issue — did Trump and the campaign collude with Russia to hack the DNC and John Podesta — and onto an ancillary but still potent issue of an abuse of power:

President Trump gave firm instructions in March to the White House’s top lawyer: stop the attorney general, Jeff Sessions, from recusing himself in the Justice Department’s investigation into whether Mr. Trump’s associates had helped a Russian campaign to disrupt the 2016 election.

Public pressure was building for Mr. Sessions, who had been a senior member of the Trump campaign, to step aside. But the White House counsel, Donald F. McGahn II, carried out the president’s orders and lobbied Mr. Sessions to remain in charge of the inquiry, according to two people with knowledge of the episode.

Mr. McGahn was unsuccessful, and the president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Frankly, this looks like weak sauce. Put aside whether this was a smart thing to do (it wasn’t, and McGahn should have known that) and focus on whether it has any legal liability. There was certainly plenty of debate at the time about whether Sessions needed to recuse himself, and that’s still a topic of debate, albeit more academically. The president appoints the Attorney General and has the authority to direct his work within the boundaries of legality. There is nothing inherently illegal in asking or demanding that Sessions refrain from recusing himself, nor of McGahn transmitting the request/demand. In the end, Sessions did recuse himself and didn’t get fired for it, which makes an obstruction case pretty tough to make.

Other claims in the NYT article might cause a little more trouble, at least politically:

The New York Times has also learned that four days before Mr. Comey was fired, one of Mr. Sessions’s aides asked a congressional staff member whether he had damaging information about Mr. Comey, part of an apparent effort to undermine the F.B.I. director. It was not clear whether Mr. Mueller’s investigators knew about this episode.

Mr. Mueller has also been examining a false statement that the president reportedly dictated on Air Force One in July in response to an article in The Times about a meeting that Trump campaign officials had with Russians in 2016. A new book, “Fire and Fury: Inside the Trump White House,” by Michael Wolff, says that the president’s lawyers believed that the statement was “an explicit attempt to throw sand into the investigation’s gears,” and that it led one of Mr. Trump’s spokesmen to quit because he believed it was obstruction of justice.

Attempting to collect “damaging information” is a routine game in electoral politics, but not usually in the context of law enforcement. That could be seen as an attempt to dig up dirt on Comey for the purpose of extortion — a clear me or I’ll ruin you sort of thing. The simpler and more likely explanation, however, is that the decision to fire Comey had already been made and the White House wanted something to use publicly against the FBI director when the stuff hit the fan. In order to prove obstruction or abuse of power, Mueller would have to definitively prove the former and rule out the latter, and the timing within the NYT article strongly suggests that the decision to fire Comey had already been made well ahead of that request.

The highlight of a false statement to the press seems almost laughable as an instrument of obstruction in a legal sense. If false statements to the press rose to that level of illegality, Pennsylvania Avenue would be permanently empty on both ends of the street. Putting out false claims in press releases is not only not a crime, it’s practically a grand tradition of American politics. That doesn’t make it a good thing, of course … but it’s not fodder for an indictment either. Press releases are not released under oath, and an entire industry (the media) exists to examine the relative level of truth within them.

Even the experts consulted by the NYT think this is still weak sauce:

But the experts are divided about whether the accumulated evidence is enough for Mr. Mueller to bring an obstruction case. They said it could be difficult to prove that the president, who has broad authority over the executive branch, including the hiring and firing of officials, had corrupt intentions when he took actions like ousting the F.B.I. director. Some experts said the case would be stronger if there was evidence that the president had told witnesses to lie under oath.

And why would that be? It would involve the commission of an explicitly illegal act. That’s the element missing from all of the above. It is not illegal for a president to order an AG not to recuse himself, nor would it have been illegal for Trump to fire Sessions for balking at that order. It is not illegal to dig up dirt on perceived political opponents, even if it’s arguably unethical to do so with a high-ranking law-enforcement official. It’s not illegal to put out misleading public statements in response to claims in newspaper articles, even if it’s unwise to do so rather than just keep one’s mouth shut, and even if that newspaper is the New York Times.

If Mueller wants to pursue an obstruction of justice case, he still has to find where justice got obstructed. Sessions recused, and the investigation went on. Comey got fired, and the investigation went on. Trump said a lot of ill-advised things over that period of time, but he never ordered an end to the probe — at least as far as has been reported at this point. The NYT article doesn’t paint a pretty picture of Trump, but it lands far off the mark for an obstruction indictment.