The blockbuster report from NBC News just revealed four devastating facts about the advanced stage of Special Counsel Mueller’s obstruction of justice investigation in the wake of President Trump’s sudden reversal and refusal to give a voluntary interview to the probe. This is extraordinary because it means that a presidential obstruction of justice case is about to land on Trump and it’s not a matter of if, but when.
Mueller’s team has arrived at four findings that will be included in a report about obstruction of justice by President Trump that will be delivered to Deputy Attorney General Rosenstein.
After Monday’s dramatic FBI raid on Trump’s personal attorney, Michael Cohen, the president and Special Counsel’s negotiations for a voluntary interview collapsed. Mueller’s team thought that their obstruction report would only be ready sometime after the interview, but now, NBC News says that prosecutors will report on these four topics much sooner:
- Trump’s intent to fire former FBI Director James Comey;Trump’s role in the crafting of a misleading public statement on the nature of a June
- 2016 Trump Tower meeting between his son and Russians;
- Trump’s dangling of pardons before grand jury witnesses who might testify against him;
- Pressuring Attorney General Jeff Sessions not to recuse himself from the Russia investigation.
NBC’s exclusive reporting outlines the presumed next steps once Mueller’s report on obstruction of justice is written and delivered to Deputy AG Rosenstein, who oversees his investigation due to Attorney General Jeff Sessions’ mandatory recusal because of his involvement in the Trump campaign.
Mueller would then likely send a confidential report to Deputy Attorney General Rod Rosenstein, who is overseeing the Russia investigation.
Rosenstein could decide whether to make the report public and send its findings to Congress.
From there, Congress would then decide whether to begin impeachment proceedings against the president, said two of the sources.
However, there are numerous alternate legal theories about the next steps Special Counsel Mueller and Deputy Attorney Rosenstein will take.
Former Independent Counsel Kenneth Starr – a highly partisan Republican – who prosecuted Bill Clinton and released a similar report to Congress actually went to great lengths to obtain a definitive legal memo which concludes that the President can be indicted.
To the contrary, the Department of Justice’s Office of Legal Counsel (OLC) – which acts as outside counsel to federal agencies and gives advice to the Attorney General – has opined twice that the President cannot be indicted, which is to this day considered an operational policy of the agency.
This means that a Mueller indictment against Trump on obstruction of justice charges could happen before impeachment, but it would probably first require a change in policy from the OLC.
In theory, a policy can be changed politically based on a decision about the totality of the circumstances by the Attorney General, whose powers Rosenstein holds in this investigation.
A policy is different than a Department of Justice regulation – like the one used to appoint Mueller or force AG Sessions to recuse himself – which has the force of statute and must go through the full regulatory process to change.
Nobody can say exactly what steps Special Counsel Mueller and Deputy Attorney General Rod Rosenstein will take between now and the end of May, but it is starting to look like a major investigative report will be concluded about Trump’s frequent, repetitive and sometimes quiet public admissions about his diligent work obstructing justice.