Did Mueller Just Snare His Prey? Trump Stumbles Into a Legal Bear Trap

No sooner had Donald Trump been assured that he was not personally under investigation than he tweeted and blustered his way into “person-of-interest” status in an obstruction-of-justice inquiry. First, he tried to get James Comey to drop an FBI investigation (and possible grand jury probe) into former National Security Advisor Michael Flynn. Then, unable to secure either a commitment to drop that investigation or a personal loyalty oath from Comey, and sleepless about where “the Russia thing” might lead, Trump fired Comey. One might reasonably ask whether, by that point, Trump hadn’t already provided investigators with a slam-dunk obstruction case.

It’s likely that he had, and Special Counsel Bob Mueller, who had to be brought in to oversee the Russia probe once Trump became a target and Acting Attorney General Rod Rosenstein became a witness, might agree. But there’s a hitch.

Check out what the official Department of Justice US Attorneys’ Manual says about putting together an obstruction case:

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There doesn’t seem much question that Trump knew there were FBI investigations underway and tried to influence those investigations for corrupt purposes — if, as to corrupt intent, we can agree that Trump’s intent was to stop the Russia/campaign collusion/Flynn investigations to foreclose the discovery of a sprawling criminal enterprise that might implicate Donald Trump himself.

The sticking point is the word proceeding: it’s illegal to corruptly interfere with a proceeding. In an excellent piece by Lawfareblog, the authors discuss the question whether an FBI investigation is a “proceeding” for purposes of the federal obstruction law. At least one judge has ruled that an FBI probe — which the judge analogized to a “mere police investigation” — is not a “proceeding” because it is not an organized, well-structured affair where the aim is to exercise some kind of judicial (and not merely data collection) function.

That interpretation may or may not have held up in higher courts in later cases, but it does provide Trump some legal ammunition; his lawyers can claim that because an FBI probe is not a “proceeding,” Trump’s meddling with it cannot have been obstruction. It’s a weasel argument, for sure, but it wouldn’t be the fist time a slimy felon got off on a “technicality.”

But there’s more, and it’s bad news for Team Trump. The US Court of Appeals for the DC Circuit (a court one step below the Supreme Court and held in the highest esteem) distinguished between different kinds of investigations in ruling that some investigations are “proceedings” for purposes of an obstruction prosecution (this synopsis from Lawfareblog):

[T]he D.C. Circuit [ruled that some kinds of investigations are “proceedings.”] The court noted that . . . other courts have found purely investigative activities to [constitute “proceedings” when] “the investigations . . . have involved agencies with some adjudicative power, or with the power to enhance their investigations through the issuance of subpoenas or warrants.” In other words, “[f]or an investigation to be considered a proceeding . . . it must be more than a ‘mere police investigation.’” [If the investigating authority is] “empowered to issue subpoenas and to compel sworn testimony in conjunction with an investigation,” its investigation [is a] proceeding.

The . . . test, then, is that the proceeding must be more than a “mere police investigation,” and the proxy for what is sufficiently more than a mere police investigation is whether the investigating agency has authority to issue subpoenas or warrants or compel sworn testimony in the matter.

This makes some sense, because an investigating authority that has the power to issue subpoenas and compel testimony is not just poking around for clues; it’s conducting a formal proceeding and wielding powers that are quintessentially judicial in nature.

And whereas an FBI agent conducting a routine inquiry does not have the power to independently issue a subpoena or compel testimony, a United States Attorney — a high-ranking Department of Justice lawyer overseeing scores of investigations and prosecutions — does.

James Comey was overseeing an FBI probe when Trump a) asked him to “let Flynn go,” and b) fired him. Because that probe was likely well beyond its nascent stages and well into the formal counter-intelligence-investigation phase, even it might have qualified as a “proceeding.” But again, Trump’s lawyers can at least argue that because Comey (who did not have the power of a United States Attorney) and his agents were running mere “police investigations,” Trump’s attempts to influence (or end) their investigations could not have constituted obstruction of justice.

James Comey, however, is no Bob Mueller. Mueller is not an agent of the FBI, and he was not appointed to start an ambling, disjointed inquiry. He is a special counsel appointed by the Acting Attorney General to execute a law-enforcement action at the highest level of government necessitated by “extraordinary circumstances.”

Want to take a guess what kind of powers a special counsel has at his disposal?

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That’s right. Robert Mueller has the same power as (and in some ways even more power than) a United States Attorney, including the power to issue subpoenas and compel testimony.

While it might not have been obstruction to mess with Comey, Mueller, unlike Comey, is clearly and unambiguously running a full-fledged, bona fide, five-alarm PROCEEDING. So messing with Mueller is like poking a bear.

Let’s look at some of the stories just recently out:

  • The New York Times reports that Trump is warning Mueller not to cross a “red line” by looking into the Trump family’s personal finances. (Trump might as well have just sent a memo telling Mueller, “That’s where the crimes are.”)
  • The Times also reports (with audio to prove it) that Trump savaged Attorney General Jefferson Beauregard Sessions The Third (for recusing himself and leaving Trump at Mueller’s mercy) and Deputy AG Rod Rosenstein (for the abominable offense of being from Baltimore). In so doing, Trump began setting up the serial firings he’ll have to enjoy before finding a Department of Justice hack who will do his bidding and fire Mueller.
  • The Times and The Washington Post are both reporting that Team Trump is looking for ways to undermine Mueller, harassing him with allegations of unethical conflicts of interest and digging around for evidence of who knows what else to use against all the lawyers on Mueller’s team.

This is a dangerous game — not just for Trump, but for his lawyers, too. I would not want my license to practice law to be on the line when Mueller came for me — with allegations that I had participated in an attempt to corruptly influence an ongoing agency proceeding.

Trump might have dodged a bullet had he only messed with Comey. But he can’t keep his mouth shut, and his lawyers have associated themselves with a man who destroys everything and everyone he touches. Were I one of them, I’d loose myself from this incriminating shitshow before it’s too late and run like hell to somewhere far, far away — where an angry bear baring judicial fangs dripping with subpoenas couldn’t get to me.

-bb

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