It is hard to fathom a near-term future in which special counsel Robert Mueller refers a finding to the Republican Congress that President Donald Trump broke the law, and the Republican Congress takes credible action in response.
To the contrary, nearly every other possible resolution to Mueller’s investigation is more plausible than one in which his work continues unimpeded, and Republicans in Congress take their constitutional obligations seriously when his findings are complete.
The question of whether those Republicans are greasing the skids for Trump to fire Mueller, or trying to hobble his efforts, or merely helping to discredit his investigation, is a matter of intense speculation. But it seems much more likely that what they are really doing is creating latitude in each of these directions simultaneously so that, one way or another, Trump never faces accountability for any crimes he has committed.
It’s been lost to the ages of the past several months, but amid the tremendous backlash to Trump’s decision to fire FBI Director James Comey last year, Republicans were relieved to learn that Deputy Attorney General Rod Rosenstein had selected Mueller as a special counsel, and claimed to be committed to protecting the integrity of his investigation. If their praise for the Mueller appointment had been sincere, it would have prefigured a pattern of behavior wildly at odds from the one we’ve witnessed since last June. As Trump’s exposure has grown, Republicans have carved out a berth of impunity around him large enough to steer him through the biggest scandal in American political history.
Permission to Fire Mueller
Because the fallout from the Comey firing was so extensive, it stands to reason that the Republicans who continue to urge Trump not to fire Mueller or tamper with his investigation genuinely believe firing him would be a mistake. Their concerns may stem from the fact that the consequences of Trump’s lawlessness would first and foremost be borne by members of Congress, but whatever their motives, the fact that they’ve spoken out at all reveals genuine dissension in the GOP ranks over the question of what Trump should do.
On the question of what Trump should be allowed to do, by contrast, there is no meaningful dissent at all. Trump’s initial frustration with the special counsel investigation, which surfaced almost immediately after Mueller’s appointment, created a brief, bipartisan consensus on Capitol Hill that Congress should take special steps to insulate the probe from White House meddling. Just as quickly, though, Republican enthusiasm for checking the president in service to the rule of law melted away, and bipartisan bills to protect Mueller have stalled.
For months, Republicans insisted that they stalled because they were unnecessary. “The only people that talk about that are the Democrats,” Senate Majority Leader Mitch McConnell told NPR at the end of last year. “I don’t hear anybody at the White House or any Republicans—or certainly not in the Senate—calling for Mueller to be fired. It strikes me that’s sort of a Democratic effort to protect him from something he doesn’t need to be protected from.”
The truth was practically the reverse. Multiple House Republicans have been agitating for Mueller’s dismissal, or for his hands to be tied, for months. On Thursday, we learned Trump actually ordered White House counsel Don McGahn to fire Mueller last summer, with the recriminations from the Comey firing still fresh on his mind. Multiple reports now suggest that Trump has Rosenstein in his sights, raising the possibility that Trump would like a loyalist acting-DAG to cut Mueller’s legs out from under him.
Contra-McConnell, Mueller’s investigation needs statutory reinforcements more urgently than any federal investigation since Watergate; Republicans won’t provide them, because they don’t want to limit Trump’s options, including the option of ending an investigation of himself.
Permission to Obstruct Justice
Outside of Congress, influential conservative commentators are building the intellectual edifice Republicans will need to simply ignore Mueller if Mueller finds that Trump and others obstructed justice, but brings no charges directly related to the conspiracy to subvert the election.
The lawyers say underlying crime not necessary to prove obstruction. But for Trump specifically, this is a political case. Not about court; about House & Senate. And no underlying crime is powerful argument in Trump’s favor. https://t.co/Tonb6LyR97
— Byron York (@ByronYork) January 26, 2018
In laying the predicate, they will surely note that Bill Clinton served out his second term in full after Ken Starr referred him to Congress for obstruction of justice and related procedural crimes, despite the fact that the underlying matter (Clinton’s affair with a White House intern) was fully substantiated.
The Clinton impeachment effort failed with obstruction of justice charges in a case where there was literal physical evidence of the relationship that Clinton was covering up.
— Ross Douthat (@DouthatNYT) January 24, 2018
The foundations of this argument are incredibly weak.
First, whether it can be shown that anyone in the Trump organization did anything illegal in colluding with Russian intelligence agents to subvert the election, the fact that actual crimes were committed in the course of the subversion is uncontested. For instance: Stealing emails is a crime.
Second, as special counsel Patrick Fitzgerald said in October 2005 when he charged Scooter Libby with obstruction in the Valerie Plame leak investigation, obstruction can be an effective means of obscuring criminal activity. “What we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view…. The harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.”
Third, many members of Congress who supported the impeachment and removal of Bill Clinton still hold elected office. Of the 11 sitting GOP senators who served during Clinton’s impeachment trial, 10 of them, including McConnell, voted to remove him. The current attorney general, Jeff Sessions, was a senator at the time, and voted for Clinton’s conviction. Sen. Lindsey Graham (R-SC) was a House impeachment manager for the Republican Party.
Fourth, Trump’s conduct—in the matters under investigation, and in the steps he has taken to cover them up—has been far more corrosive to the health of the republic than Clinton’s was two-decades ago. Clinton was discovered, at the end of a meandering, multi-year, investigation, to have had an extramarital affair with an intern, and the steps he took to avoid getting caught resulted in his impeachment and disbarment. Trump, on the other hand, actively abetted, and continues to abet, an intelligence operation that helped him win the presidency, as part of a larger Russian goal of destabilizing American democracy. In covering up that crime he has fired an FBI director, ordered the firing of a special counsel, purged members of the FBI’s leadership team who are witnesses in the special counsel investigation, spread conspiracy theories about a coup, ordered counter investigations of his political enemies, and is now reportedly conspiring to oust Rosenstein, who oversees Mueller—all with Republican acquiescence.
If Starr’s case against Clinton’s procedural crimes merited impeachment and disbarment, an obstruction case against Trump should merit meaningfully greater punishment. Not less.
Permission for Everything
The worst case scenario for Trump and Congressional Republicans is one in which Mueller charges members of the Trump organization with crimes committed in the course of colluding with Russian intelligence, perhaps naming Trump as an unindicted coconspirator. Trump only skates in this scenario if Republicans help him characterize the whole thing—Mueller, the investigation, its findings—as the product of a nefarious plot. That would be the ultimate abdication of the GOP’s constitutional obligations, leaving Trump unaccountable for any level of criminality and corruption, and destroying public confidence in the rule of law.
And yet, Republicans spent much of last week raving about a “secret society” of DOJ officials conspiring against Trump, and stand poised to release a partisan memo that will characterize the Mueller investigation as the discredited endpoint of an Obama-era conspiracy to sabotage Trump.
Trump is too erratic to stick to a game plan, and Republicans in Congress are too scattered to guide Trump in any single direction. The plan, such as it is, is to keep all avenues of escape open, so long as none of them end with Republicans taking an appropriate but uncomfortable stand for justice.
This article has been updated.