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Debate rages over Trump tweets and obstruction

President TrumpDonald TrumpFreedom Caucus member condemns GOP group pushing 'Anglo-Saxon political traditions' MyPillow CEO Mike Lindell's new free speech site to ban certain curse words Secret Facebook groups of special operations officers include racist comments, QAnon posts: report MORE may have given special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE a new gift this week: tweets that could help build an obstruction of justice case against him.

Trump's tweet lashing out at Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsGarland rescinds Trump-era memo curtailing consent decrees Biden picks vocal Trump critics to lead immigration agencies The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings MORE and saying that he should quash Mueller's investigation into Russian interference would seem to feed an obstruction of justice case — following reports that Mueller is looking at the president's messages on Twitter closely.

Legal analysts say that a single message would not form the basis for an obstruction charge.

“It’s pretty unlikely that any single tweet is going to amount to obstruction of justice,” said Randall Eliason, a law professor at George Washington University and former U.S. assistant attorney.

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But Mueller's team is likely cataloging the tweets to try to understand his actions. This could be part of building a case that Trump had a “corrupt intent” to obstruct justice.

“I think that Mueller is very likely collecting all of it and trying to look at it in its entirety, both with respect to timing and content, to see does it add to some other substantive, powerful part that suggests obstruction,” said Ron Hosko, a former FBI official who worked with Mueller.

In the tweet that started this week’s storm, Trump doubled down on his public criticism of the Russia investigation, writing that Sessions “should stop this Rigged Witch Hunt right now, before it continues to stain our country any further.”

The message ignited a debate over whether Trump’s words were an order for Sessions to end the probe. Trump’s aides swiftly said it was not.

“It's not an order. It's the president's opinion,” White House press secretary Sarah Huckabee Sanders told reporters during Wednesday’s briefing, adding, “The president is not obstructing. He is fighting back.”

Trump’s critics, however, seized on the tweet as an effort to impede the Russia investigation, which includes examining whether there was coordination between the president’s campaign and Moscow to interfere in the 2016 election. Rep. Adam SchiffAdam Bennett SchiffOvernight Defense: Administration says 'low to moderate confidence' Russia behind Afghanistan troop bounties | 'Low to medium risk' of Russia invading Ukraine in next few weeks | Intelligence leaders face sharp questions during House worldwide threats he Hillicon Valley: Biden administration sanctions Russia for SolarWinds hack, election interference Intelligence leaders face sharp questions during House worldwide threats hearing MORE (D-Calif.), the top Democrat on the House Intelligence Committee, called it “an attempt to obstruct justice hiding in plain sight.”

Difficult to prove

Obstruction of justice is a difficult crime to prove in court.

A prosecutor must persuade a jury beyond a reasonable doubt that a person’s actions hindered an investigation and that the person intended to do so.

“Intention in an abstract way is never directly proved. I have no way of knowing what is in your brain, and you have no way of knowing what is in my brain,” said Steven Cash, a lawyer at firm Day Pitney.

But, Cash added, “we have outside indicators of that.”

Public statements, including tweets, can be used as an indicator to bolster a prosecutor's argument that a defendant had the intent to obstruct justice.

“Obstruction of justice is one of those crimes in which a lot of effort needs to go into proving to a jury what a person had in their mind when they were doing those things,” Cash said.

At the core of the obstruction issue is Trump’s decision to fire former FBI Director James ComeyJames Brien ComeyShowtime developing limited series about Jan. 6 Capitol riot Wray says FBI not systemically racist John Durham's endgame: Don't expect criminal charges MORE last May.

Initially, the White House said the decision was triggered by a Justice Department recommendation that Comey be fired over his handling of the Hillary ClintonHillary Diane Rodham ClintonPelosi on power in DC: 'You have to seize it' Cuba readies for life without Castro Chelsea Clinton: Pics of Trump getting vaccinated would help him 'claim credit' MORE email investigation. Later, the president said he was going to fire Comey “regardless of recommendation,” and suggested the Russia investigation was a factor.

Comey testified before Congress that Trump asked him to “let go” of the investigation into former national security adviser Michael Flynn — a statement he took as a direction. Trump has accused Comey of lying about their interactions.

Broader questions

There is also a broader debate over whether the president can even be charged with obstruction of justice.

Some, like Alan Dershowitz, professor emeritus at Harvard Law and a columnist for The Hill, have argued that Trump has the constitutional authority as commander in chief to fire the FBI director and order the Justice Department who and who not to investigate.

“A president is well within his constitutional and political authority to shut down an investigation. The Justice Department is part of the executive branch and the president is the head of the executive branch and he can do that,” said Jack Sharman, former Whitewater special counsel to Congress.

“There may some significant political price to pay for it,” Sharman added, citing potential impeachment.

Publicly, Trump has waged against the Russia probe since Mueller’s appointment, often criticizing Sessions and Deputy Attorney General Rod RosensteinRod RosensteinProtect the police or the First Amendment? Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office MORE, who is overseeing the investigation. Trump has cast the investigation as a “witch hunt” and denied allegations of collusion as a fiction peddled by Democrats.

Mueller has secured guilty pleas from and indicted individuals on Trump’s campaign, like former campaign chairman Paul ManafortPaul John ManafortTreasury: Manafort associate passed 'sensitive' campaign data to Russian intelligence Hunter Biden blasts Trump in new book: 'A vile man with a vile mission' Prosecutors drop effort to seize three Manafort properties after Trump pardon MORE, who is currently on trial after pleading not guilty to bank and tax fraud charges. The special counsel has made no public judgment related to collusion or obstruction of justice.

Trump’s lawyers and Mueller’s team have been locked in negotiations for several months over a possible interview with Trump. The president has at times appeared to welcome the prospect, saying in January he’d speak to the special counsel under oath.

If the interview does happen, investigators are likely to want to question Trump on his tweets — and what he was thinking when he sent them.

“The question is whether these tweets testify to a broader state of mind on the president’s part,” said Stephen Vladeck, a University of Texas law professor. “As one of any number of potential indicators of why the president is acting the way he is, it’s not hard to see how the tweets, at least in that context, could be relevant.”

The dueling sides showed signs of progress toward a possible interview this week, though it remains unclear whether a deal will be made. Mueller has offered to limit some questions having to do with obstruction of justice and to accept some answers in written form, according to The Washington Post. A presidential interview could signal that Mueller’s investigation is wrapping up.

“I think that Mueller is bound to move forward on that account if, for no other reason, just to have a complete investigation,” said Hosko.

Jordan Fabian contributed.