New normal: A president can freely interfere with investigations without going to jail

New normal: A president can freely interfere with investigations without going to jail
© Greg Nash

Listening to Attorney General William BarrWilliam Pelham BarrTrump: Giuliani to deliver report on Ukraine trip to Congress, Barr 'Project Guardian' is the effective gun law change we need Supreme Court denies Trump request to immediately resume federal executions MORE’s full-throated defense of Trump’s conduct in yesterday’s press conference and then reading the obstruction section of the redacted report of Special Counsel Robert MuellerRobert (Bob) Swan MuellerTrump says he'll release financial records before election, knocks Dems' efforts House impeachment hearings: The witch hunt continues Speier says impeachment inquiry shows 'very strong case of bribery' by Trump MORE was vertigo-inducing. 

While the report declined to state whether or not Trump violated obstruction of justice statutes, it laid out a pattern of disturbing presidential conduct that Barr seemed to go out of his way to excuse as the product of nothing more than Trump’s understandable frustration with Mueller’s investigation. As Fox News’ Chris WallaceChristopher (Chris) WallaceImpeachment puts spotlight on Georgia Republican eyeing Senate Fox's Cavuto reads mean letters urging him to stay away after Trump criticism Trump gives shoutout to Doug Collins ahead of next phase of impeachment hearings MORE put it, "The attorney general seemed almost to be acting as the counselor for the defense, [as] the counselor for the president, rather than the attorney general.”

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In doing so, Barr may have greenlighted a level of presidential interference with investigations of presidential conduct that, even if such interference doesn’t rise to the level of criminal conduct, would have been unthinkable until now.

Trump’s conduct as described in the Mueller report was not pretty, noting the “investigation found multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” While the strength of the evidence varied from incident to incident, there was at least “some evidence” that Trump did the following (and this is only a partial list).

An especially riveting example in the report of Trump’s conduct — for which there was “substantial evidence” —concerns then-White House counsel Donald McGahnDonald (Don) F. McGahnRudy Giuliani's reputation will never recover from the impeachment hearings In private moment with Trump, Justice Kennedy pushed for Kavanaugh Supreme Court nomination: book America has no time to wait for impeachment MORE. In May 2017, Trump was informed of Mueller’s appointment as special counsel. According to the report, he “slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my presidency.’” He then directed McGahn to call Deputy Attorney General Rod RosensteinRod RosensteinRosenstein, Sessions discussed firing Comey in late 2016 or early 2017: FBI notes Justice Dept releases another round of summaries from Mueller probe Judge rules former WH counsel McGahn must testify under subpoena MORE and have Mueller removed, which McGahn refused to do. 

Stories ran in 2018 that Trump had ordered McGahn to push Rosenstein to get rid of Mueller. On several occasions, both directly and through intermediaries, Trump, according to the report, tried to get McGahn to publicly dispute the stories, which McGahn, who was interviewed by the Mueller team, also refused to do.

That certainly sounds like an improper effort by Trump to influence the testimony of a witness during an ongoing investigation. In fact, that is how the redacted report appears to characterize this incident stating, “substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the special counsel terminated, the president acted for the purpose of influencing McGahn’s account.” The McGahn episode alone might have justified a finding that Trump obstructed justice. However, Mueller decided, largely for policy reasons, not to make a charging decision. 

Anyone looking for a hopeful outcome for presidential conduct in the report might point to Mueller’s conclusion that the obstruction of justice statutes applies to presidents, which is at odds with Barr’s views. But, if the bar for what constitutes inappropriate presidential obstruction — let alone criminal conduct — has been set so low as to be underground, it may not matter.

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The issue goes well beyond Trump. Six of the last nine presidents (including Trump) have been caught up in obstruction investigations. The Mueller report and Barr’s defense of the conduct it describes may have opened a Pandora’s box in which a president will feel free to interfere with any investigation that concerns his behavior, including by using all of Trump’s techniques.

Perhaps Mueller wants to just ride off into the sunset like the hero of an old western movie. But now he has an obligation to make clear that his report is not a manual for how presidents can interfere with investigations of their conduct without going to jail.

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.