Why Trump's desire to fire Mueller may invite obstruction case and why it's such a big deal

Show Caption Hide Caption Trump calls N.Y. Times Mueller report 'fake news' President Trump called New York Times report that he ordered special counsel Robert Mueller fired 'fake news.' The Times reports Trump ordered the firing last June but backed off when White House lawyer Don McGahn threatened to quit. (Jan. 26)

WASHINGTON — If Russia special counsel Robert Mueller is building a case of obstruction against President Trump, the president’s thwarted attempt to fire the special counsel last year may have made Mueller’s job that much easier.

Even though White House Counsel Donald McGahn successfully headed off Trump’s reported effort Mueller could use the episode as evidence of Trump’s intent to shield himself from possible legal jeopardy, analysts said.

The New York Times and The Washington Post reported late Thursday that Trump ordered McGahn to fire Mueller in June, but McGahn refused and threatened to quit if the president insisted. The reports said Trump abandoned the idea after that. Trump on Friday dismissed the report as "fake news."

'EXPLICIT EVIDENCE' OF INTENT

“The hardest thing to prove in most obstruction cases is intent to obstruct,” former federal prosecutor Patrick Cotter said. “Explicit evidence of such an intent, like actually ordering Mueller’s firing, is extremely valuable to the investigators.

“This evidence,” Cotter said, “will make it even harder for Trump to argue that whatever he did —was not because he was trying to obstruct.”

Ron Hosko, former chief of the FBI’s criminal division, said the president has placed himself in a potentially “precarious” legal position that also will make a looming interview with Mueller’s investigators even more complicated.

“If Mueller also has evidence that the Trump campaign coordinated with the Russians, the president’s attempt to fire Mueller only invites an obstruction charge,” Hosko said. “And if there is evidence of an underlying crime of collusion, I think you could see Mueller move very quickly.”

An obstruction case would be harder to prosecute without evidence of an underlying crime, such as colluding with a foreign government to tip an election.

BUILDING THE CASE

While Trump’s push against Mueller was first disclosed by the New York Times late Thursday, it is likely that the special counsel—who already has interviewed McGahn, then-chief of staff Reince Preibus and former press secretary Sean Spicer—has been aware of the failed effort for some time.

“In addition to the interviews, Mueller likely has the text messages, emails and other communications that will provide a fuller context to what led to this (attempt to fire Mueller) and the decision to dismiss former FBI Director James Comey,” Hosko said.

Comey’s dismissal, which came just a month prior to move against Mueller, has been a central focus of the obstruction examination.

In the days after the firing of Comey, who was managing the Russia investigation, Trump told NBC News that the director’s dismissal was linked to his handling of the Russia inquiry.

“You know, this Russia thing with Trump and Russia is a made-up story,” the president said then. “It’s an excuse by the Democrats for having lost an election that they should’ve won.”

Since his firing, Comey has become a an important witness for Mueller related to the president’s possible attempts at obstruction, disclosing last year that he kept detailed memos of every encounter with Trump.

Among those contacts: the president allegedly asked Comey to pledge his loyalty to him. He also urged Comey to drop the FBI’s investigation into former national security adviser Michael Flynn for lying about his contacts with Russian Ambassador Sergey Kislyak just prior to the inauguration in which the two discussed the lifting of Obama administration sanctions against Russia.

Flynn pleaded guilty last month to lying to the FBI and is cooperating with the continuing special counsel’s investigation.

SESSIONS' ROLE

Mueller’s focus on possible obstruction emerged in fuller view earlier this week, when the Justice Department acknowledged that Attorney General Jeff Sessions had been interviewed for several hours by Mueller’s team.

Sessions, who participated in Comey’s firing, also is a key witness to the events that prompted the abrupt dismissal.

The attorney general, who recused himself last year from the Russia inquiry because of his own campaign-related contacts with Kislyak, has said that Comey was fired last May because of his controversial handling of the investigation into Hillary Clinton’s use of private email server while she was secretary of State.

Yet only a month after dismissing Comey, an angry president apparently sought to take out Mueller, too, said officials familiar with the incident.

OVAL OFFICE IRE

Trump was upset about what he believed was Mueller's alleged conflicts—his interest in replacing Comey as FBI director, Mueller’s resignation from a Trump-owned golf club and political affiliations at Mueller’s law firm —and talked to his lawyers about them, they said.

His lawyers convinced him it was a bad idea and eventually Trump pledged to work with Mueller's office, which they said he has done.

At the same time, the officials said that Trump discussed possibly firing Mueller with his friends.

Do you notice the Fake News Mainstream Media never likes covering the great and record setting economic news, but rather talks about anything negative or that can be turned into the negative. The Russian Collusion Hoax is dead, except as it pertains to the Dems. Public gets it! — Donald J. Trump (@realDonaldTrump) January 16, 2018

Christopher Ruddy, CEO of Newsmax Media and a friend of Trump, told the PBS NewsHour in June:

“I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option ... I personally think it would be a very significant mistake.”

Yet legal analysts said the collective weight of Trump's actions is pushing him closer to an ugly confrontation with the special counsel.

"The evidence is compelling of President Trump's corrupt intent to thwart the Russia investigation and obstruct justice," said University of Notre Dame law professor Jimmy Gurule, .

"Trump, by his own admission, fired former FBI director James Comey because of the 'Russia thing.' One month later, the president attempted to fire Mueller, who was conducting the Russia investigation, said Gurule, a former federal prosecutor who worked in the administration of President George H.W. Bush. "The only reasonable inference to draw is that Trump, with corrupt intent, attempted to obstruct and impede the due administration of justice, which is a federal crime."