Even if President Donald Trump did not break any laws during the 2016 election campaign, lawyers say his actions since the election are creating their own legal conundrum.
On Monday, the Washington Post reported Trump personally dictated a misleading statement to be attributed to his son, Donald Trump Jr., last month. And in a lawsuit first reported on Tuesday, a former private investigator alleged Fox News worked with the Trump administration to publish a fake news story connecting a murdered Democratic National Committee staffer to Wikileaks, which disseminated DNC internal emails during the campaign. As special counsel Robert Mueller continues his investigation into Russian interference in last year’s election and possible collusion with the Trump campaign, lawyers say the apparent White House dysfunction can only add to any case Mueller may be building.
“Unless this is simply an exercise in utter chaos, the variety of different representations and misrepresentations and counter-representations that continue to emanate not just out of the White House, but also from the president himself, give the impression that there’s something to hide,” said Richard Ben-Veniste, a partner at Mayer Brown who served as chief of the Watergate Special Prosecutors’ Watergate Task Force from 1973 to 1975. Ben-Veniste gave his personal opinion, not that of his current firm, on the matter.
While reports last month indicated Mueller’s investigation may be weighing the possibility of obstruction of justice, few details have become known to the public. To show obstruction of justice, prosecutors would need to prove that Trump or his aides took actions with the intent to conceal information from or impede Mueller’s probe or any other law enforcement investigation.
Taking a hand in crafting his son’s statement to media outlets doesn’t necessarily fit that description — unless there’s clear proof Trump did so with intent to hide the truth from investigators, explained Harvard professor and former federal prosecutor Alex Whiting.
“If this was all you had, then I don’t think many people would say, ‘Oh, this rises to the level of obstruction of justice,’” Whiting said of Trump’s involvement in messaging. “But it is another piece in a larger pattern of Trump trying to keep the truth from getting out.”
Whiting said that if he were building an obstruction of justice case against Trump, the “action” of obstructing justice would have taken place on Feb. 14, when Trump told then-FBI Director James Comey that he hoped Comey would “let go” of the FBI investigation into retired Gen. Michael Flynn, who had been fired as national security adviser to the president. Comey testified as to the substance of the conversation under oath before Congress in June.
Everything else, Whiting said, “shows a pattern of conduct that helps you understand what [Trump's] intent is.”
As for the allegations in the Fox News lawsuit, Fox News president of news Jay Wallace said in a statement Tuesday they were “completely erroneous.” Even if the allegations were later shown to be true — that Fox News worked with Trump or his aides to distract from the Russia story — Whiting said it’s a stretch that such an act would implicate Trump on obstruction of justice.
He said for a prosecutor, it would need to be clear that the administration was either withholding information or spreading false information with the intent to derail a criminal investigation, not just for the purposes of easing public pressure or increasing political popularity.
“Another way to think about this is, when does political spin cross over to obstruction of justice? Obviously there’s some room in campaigns to spin information in your favor. … Those are legitimate examples of political spin. If you take actions to derail a criminal investigation, that’s something else,” Whiting said.
Baker Botts partner William Jeffress said he doesn’t think any of Trump’s actions to date, including the Comey conversation, would, on their own, be grounds for obstruction charges. Jeffress defended I. Lewis “Scooter” Libby from federal obstruction of justice charges stemming from an investigation into the “outing” of CIA officer Valerie Plame.
Jeffress said that any type of false statement, to the press or anyone else, made during a concurrent investigation is “dangerous” for Trump because it adds to the theory that there was an effort to subvert the truth.
But he cautioned about stringing together false statements without any clear evidence as to the intent behind it.
“You can’t put together six things, none of which in itself constitutes obstruction and then add them up and say, ‘It’s obstruction,’” Jeffress said. “That doesn’t work.”
Still, the conflicting information out of the White House damages Trump’s credibility and that of his staff, Ben-Veniste said. When and if a trial occurs, credibility will be key for anyone on Trump’s legal team.
“In any kind of controverted fact situation, a person who is a party to a dispute must put his or her credibility to issue, and to the extent that that credibility has been wantonly surrendered, it will make a difference,” Ben-Veniste said.