Obstruction.....

If this isn't obstruction of justice ...

By Elie Honig

This week's New York Times report that President Donald Trump asked then-acting Attorney General Matthew Whitaker to get US Attorney Geoffrey Berman to un-recuse himself and take charge of the Michael Cohen investigation evokes an old school, Nixonian attempt to obstruct justice.

If the reporting is accurate, Trump's actions make his intent clear: Get my hand-picked appointee -- Trump personally interviewed Berman before he was appointed to run the Southern District of New York -- back on the Cohen case to limit the damage done to me.

I've charged and tried obstruction of justice cases. If this isn't an attempt to obstruct, then I don't know what is.

Trump has offered only the weakest of defenses: The conversation with Whitaker didn't happen, and the report is "fake news." (Note the pause in this video before Trump answers; prosecutors or poker players might call this a "tell.)

That defense collapses under scrutiny. First, Whitaker has essentially admitted he did speak with Trump about the Southern District of New York case. Under questioning in Congress -- stemming from CNN's exclusive reporting that Trump discussed that investigation with Whitaker -- Whitaker forcefully denied he had spoken to Trump about special counsel Robert Mueller's investigation but bobbed, weaved and ultimately declined to answer when asked if he and Trump had discussed the Southern District of New York case.

Common sense: When a witness strongly denies he discussed one thing but dodges on the other, that means he discussed the other thing.

Also, Trump happens to have done the exact same thing he reportedly tried to do to Berman -- convince him to un-recuse and take charge of a criminal matter to limit potential damage to Trump -- to former Attorney General Jeff Sessions.

Trump repeatedly and publicly berated Sessions, calling him "scared stiff and Missing in Action," retweeting a commentator who referred to Sessions' recusal as "an unforced betrayal," and declaring that Sessions should un-recuse and "stop this Rigged Witch Hunt right now." Trump tried to bully Sessions into getting back into the Russia case to limit damage done to Trump; is it any wonder Trump tried to do the exact same thing to the Southern District of New York?

Now, your questions

Sandra, Massachusetts: Can Congress subpoena Mueller to testify as to the report and to any interference his office has experienced -- particularly if new Attorney General William Barr refuses to make the full report public?

Many readers suggested this as a possible recourse if some or all of the Mueller report is kept out of public view. Yes, Congress -- almost certainly the Democratic-controlled House -- could subpoena Mueller and ask what he learned during the investigation. However, Mueller would face limits on what he could talk about publicly. He cannot disclose classified or sensitive national security materials.

Prosecutors also are prohibited from publicly discussing grand jury material, meaning information or testimony obtained through a subpoena. However, there are ways around this prohibition; former Bill Clinton independent counsel Kenneth Starr obtained court permission to disclose grand jury materials, for example. And Trump might assert executive privilege to block Mueller from testifying about Trump's discussions with his advisers. Though, as discussed below, I doubt Trump would prevail legally.

So, while Mueller's live testimony would be limited in some respects, it remains an important fail-safe if Trump or Barr quashes the special counsel's written report altogether. And the pure drama of Mueller taking the stand in Congress would be unparalleled.

Andrea, New York: What will happen to the Mueller probe and all the new congressional investigations if Trump invokes executive privilege?

Executive privilege is not a "get out of jail free" card. It does, however, enable the President and perhaps others to avoid answering questions or producing evidence in response to a subpoena. The idea is that the president should be able to speak freely and confidentially with his advisers without worrying about those discussions ever becoming public -- as with other legal privileges between attorney and client or doctor and patient.

I expect executive privilege could still become a flashpoint in the Russia investigation. Trump and his team already have suggested he might invoke executive privilege to avoid answering direct questions from Mueller, to resist congressional subpoenas and to redact portions of Mueller's written report.

The issue could end up before the Supreme Court, as it did in 1974 in United States v. Nixon. The court unanimously ruled against President Richard Nixon, who argued that executive privilege protected him from having to turn over White House tapes to the Watergate special prosecutor.

The court held that executive privilege protects national security and military secrets but does not provide a generalized shield in criminal matters. Given the Nixon precedent, I think Trump will fail if he tries to exert executive privilege for anything other than sensitive national security communications.

While the Nixon decision arose from a dispute over a grand jury subpoena, the precedent likely would also apply to congressional testimony. Mueller's probe may be ending, but as congressional inquiries continue, executive privilege is likely to an ongoing issue.
Michael, Missouri: I'm not a lawyer, but can Roger Stone get away with just apologizing?

In 14 years as a prosecutor, I saw defendants do reckless things while released on bail awaiting trial. But I've never seen a defendant do anything quite as blatant as Stone publicly posting on social media a photo of Judge Amy Berman Jackson with rifle cross hairs next to her head and accusing the judge of presiding over a "show trial."

In other words, I doubt he will be able to get away with it. Stone committed new federal crimes by threatening the judge and obstructing justice. Stone might argue he did not intend the post as a threat -- his mealy-mouthed, heavily lawyered, passive-voiced "Notice of Apology" lamely makes that argument -- but any rational person sees an image of cross hairs as a threat.

Apparently, Jackson does, too; she has summoned Stone to court to consider whether to revoke his bail based on a violation of bail conditions (which include a prohibition on committing new crimes) or to broaden the gag order that Jackson issued Friday.

Stone grew up in a political underworld where you can slide by with cheap shots and flimsy denials. But the criminal courts are different; accountability is enforced. Stone's dangerous actions pose a threat to the judge, the justice system and his own liberty.

John, Tennessee: Since Paul Manafort is being prosecuted and sentenced to prison for lying to the FBI, isn't Andrew McCabe subject to the same since he has been found to have lied to the FBI as well?

In a February 2018 report, the Department of Justice inspector general found that former acting FBI Director McCabe "lacked candor" in responding to questioning about his involvement in anonymous leaks to the media; those leaks rebutted an incorrect narrative that McCabe had terminated an investigation of Hillary Clinton and the Clinton Foundation. In March 2018, Sessions, then attorney general, fired McCabe, based on the inspector general's findings.

McCabe might be charged with federal crimes, including false statements and obstruction of justice. McCabe has claimed publicly that he did not intentionally lie but rather was confused by investigators' questioning and distracted by other events swirling around the FBI.

I find that defense hard to believe. The inspector general found that McCabe "lacked candor" not once -- when maybe he had a bad day or was out of sorts -- but three separate times on three separate dates, all while under oath. McCabe's statements were straightforward -- he falsely denied authorizing or being the source of leaks to the media about a recent and exceptionally high-profile case. That's not the kind of thing one forgets or misremembers or misstates.

Ultimately, a prosecutor will weigh all the facts and determine if a criminal prosecution of McCabe is appropriate and warranted. Mueller is not handling the McCabe investigation, but he has indicted Manafort, Stone, Michael Flynn, Cohen, Rick Gates and George Papadopoulos for allegedly making false statements to federal investigators or Congress.

McCabe, too, lied to federal investigators (repeatedly), and it is hard to see a meaningful distinction between his case and the ones Mueller has charged.

Joe, Massachusetts: What is the rationale for the Department of Justice counseling against indicting a sitting president for a crime? I thought that no American was above the law.

The primary rationale for the Justice Department's current policy against indicting a sitting president is that it could effectively cripple the executive branch: "To wound (the President) by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs."

The department's policy also considers the possibility of indicting the president while in office and delaying trial until his term ends, but concludes that "an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction."

For those who worry that Justice Department policy places a sitting president above the law, remember two things. First, a president can be impeached, removed from office and potentially indicted or indicted after the natural end of his term (subject to statute of limitations). Second, the department's policy acknowledges that there is no clear answer in the Constitution -- "neither the text nor the history of the Constitution ultimately provided dispositive guidance" -- and there is healthy disagreement among scholars about the issue.

Molly, Georgia: In a tweet, Trump called the 25th Amendment "unconstitutional." Is it even possible for part of the Constitution to be unconstitutional?

Trump, quoting Alan Dershowitz, tweeted that trying "to use the 25th Amendment to try and circumvent the Election is a despicable act of unconstitutional power grabbing." By definition, something that is part of the Constitution cannot be unconstitutional.

However, I think Trump meant that it would have been an abuse of the 25th Amendment to remove him from office. I agree with that. The 25th Amendment applies not to a president who acts badly or rashly or irresponsibly, but rather to a president who is "unable to discharge the duties of his office."

The amendment passed in 1967, after the assassination of John F. Kennedy, when concerns ran high about contingency plans if a president was grievously wounded and incapacitated.

McCabe and others at the FBI might have genuinely believed Trump was compromised by his potential ties to Russia. The proper constitutional remedy, however, would not be removal through the 25th Amendment but rather investigation and, if warranted, impeachment.

McCabe and the FBI acted appropriately and wisely when they initiated counterintelligence and obstruction of justice investigations of Trump in 2017; those investigations were, and remain, necessary to determine the full extent of Trump's relationship with Russia.

Our Constitution provides various mechanisms to hold a president accountable, and here I think that an investigation and potential impeachment (depending on the findings) are a better fit than the 25th Amendment.

Bethany, Georgia: There is so little talk of the immunity granted to Allen Weisselberg, Trump's longtime chief financial officer. Do you believe Weisselberg's cooperation has led to the recent subpoenas to the Trump inaugural committee and interview requests with the Trump Organization?

We haven't heard much about Weisselberg since he received immunity from the Southern District of New York, but don't sleep on him. The Southern District immunized Weisselberg -- meaning essentially it agreed not to charge him if he provided full and truthful testimony -- in relation to hush money payments to two women, potentially in violation of campaign finance laws.

After Weisselberg entered the immunity deal with the Southern District of New York, Cohen pleaded guilty to campaign finance violations relating to those payments. The Cohen charging papers also detail the involvement of Trump Organization "Executive-1" and "Executive-2," both of whom eventually could face campaign finance charges.

More broadly, Weisselberg kept the books for Trump for decades and reportedly "knows where all the financial bodies are buried." If Weisselberg continues to cooperate, he could give the Southern District of New York a guided tour of decades' worth of financial and potentially other malfeasance by the Trump Organization.

3 questions for the next week:

1) Will Mueller send his report to Barr next week, as reportedly expected, and what will Barr do with it from there?
2) Will Sen. Lindsey Graham follow through on his vow to hold hearings on the FBI's consideration of invoking the 25th Amendment to remove Trump? And, if so, what more will we learn about the early days of the Russia investigation?
3) When Cohen testifies publicly in the House Intelligence Committee next Wednesday, what will the committee and public learn?