Special counsel Robert Mueller could have a tough time making an obstruction of justice case stick against President Trump, according to legal analysts, who said he will have to overcome a number of “unique hurdles” — not the least of which is a decades-old Justice Department ruling that a sitting president can’t be charged.
Analysts say it will be up to Mr. Mueller to decide whether to accept the long-standing opinion of the Office of Legal Counsel, which ruled in 1973 and again in 2000 that a president has immunity from criminal prosecution.
It’s also not clear that FBI investigations count as “proceedings” that could be obstructed under one of the legal statutes that might be cited in an obstruction case, according to a legal memo prepared last month by the Congressional Research Service.
“Courts have not reached consensus on whether an FBI investigation meets this standard,” the report says of 18 U.S.C. 1505, which applies generally to obstruction of administrative proceedings.
Mr. Mueller’s office declined to comment Thursday on reports that the special prosecutor’s probe had expanded from Russian meddling in the November presidential election to questions of whether Mr. Trump tried to obstruct the Russia investigation.
Separately, Sen. Richard Burr, North Carolina Republican and chairman of the Senate Select Committee on Intelligence, and Sen. Mark R. Warner, the panel’s ranking Democrat, confirmed their own investigation of Russian hacking and suspected collusion would not be looking into the obstruction of justice claim.
“Obstruction is criminal — there’s a criminal aspect to that,” Mr. Burr told CNN. “It’s never been part of our [investigation].”
But Rep. Adam B. Schiff of California, the ranking Democrat on the House Permanent Select Committee on Intelligence, which also is investigating the Russian hacking case, said he is pressing to inquire about obstruction of justice.
“I think it needs to be part of the investigation,” Mr. Schiff told Politico on Thursday. “Congress has to get to the bottom of whether anybody is interfering or obstructing any investigation in any way.”
“What we really need to be looking at is Russian interference, their willingness and desire to hack into our systems,” Rep. Mark Meadows, North Carolina Republican and chairman of the conservative House Freedom Caucus, told The Washington Times.
Mr. Trump, through his Twitter account, was again angrily attacking leaks of a possible obstruction of justice case. He said he was the victim of a “witch hunt” without precedent in U.S. history.
The president again called the Russia probe an attempt by Democrats to distract from their election loss and from the scandals surrounding Hillary Clinton’s email server.
“You are witnessing the single greatest WITCH HUNT in American political history — led by some very bad and conflicted people!” Mr. Trump tweeted. It was an apparent reference to reports that Mr. Mueller, a former FBI director, was too close to Mr. Comey and that some of the investigators he has recruited have donated to Democratic politicians.
Mr. Trump and his defenders also say the Mueller probe has been a source of damaging leaks, including news of the obstruction of justice investigation and a Washington Post report Thursday evening that the special counsel is reportedly looking into the finances and business dealings of Jared Kushner, Mr. Trump’s son-in-law and a top White House adviser.
Jamie Goerlick, Mr. Kushner’s attorney, said it was not clear what the probe entailed but added, “It would be standard practice for the special counsel to examine financial records to look for anything related to Russia. Mr. Kushner previously volunteered to share with Congress what he knows about Russia-related matters. He will do the same if he is contacted in connection with any other inquiry.”
“If Mueller concludes that he is bound by the OLC opinions or if he concludes it’s the right conclusion, then there is a genuine issue on how far he can press a criminal investigation into the president’s own conduct,” said Philip Allen Lacovara, a former U.S. deputy solicitor general who served as counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski.
The Office of Legal Counsel opinions — which concluded that “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” — coincided with probes into the actions of President Nixon and President Clinton.
Mr. Lacovara advised the Watergate special prosecutors handling the Nixon investigation that the president doesn’t have any sort of unique immunity from the law. Nixon never faced any criminal proceedings before he resigned in 1974 facing impeachment by the House, and he was pardoned shortly after he left the White House by his successor, Gerald Ford.
Whether the Justice Department’s stance would stand up in court is untested, the Congressional Research Service reported.
“The DOJ opinion — issued in 1973 and reiterated in 2000 — shows nonetheless that an obstruction of justice prosecution against a sitting president, as opposed to other members of the executive branch, would face unique hurdles,” the report states.
John Carlin, who was an assistant attorney general for national security in the Obama Justice Department, doesn’t expect Mr. Mueller to test those uncharted waters.
“Mueller, who has spent nearly his entire career working for the Justice Department, seems unlikely to confront the office’s conclusion head-on, given its role as the executive branch’s foremost legal authority,” Mr. Carlin wrote in an analysis published last week in The Washington Post.
The statute governing the appointment of a special counsel states that the counsel “shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice.” But that doesn’t mean the outside investigator does everything the same way agents handling a Justice Department investigation would be required.
For instance, criminal wiretaps sought by the special counsel wouldn’t have to be approved by Justice Department’s criminal division. The special counsel is also expected to seek guidance from offices within the department about polices and practices except in “extraordinary circumstances,” under which doing so might be inappropriate. In that case, he is to consult with Mr. Rosenstein instead.
But concluding that there is a case for obstruction of justice will be a tricky endeavor in and of itself, said Kenneth W. Starr, who acted as an independent counsel investigating President Clinton.
“Obstruction of justice is really a hard crime to make out,” Mr. Starr told CNN on Thursday. “It’s not just that you want the investigation to go away, that you suggested the investigation goes away. You have to take really affirmative action.”
Mr. Starr said it was too soon to determine whether obstruction charges could be substantiated in Mr. Trump’s case. Based on the information made public thus far about Mr. Trump’s interactions with Mr. Comey, Mr. Starr said he didn’t think there was enough evidence to bring such charges.
If charges are not filed, there is some question as to how much Mr. Mueller could choose to make public about the results of his investigation.
The special counsel is required to send a confidential report to the attorney general — in this case to Mr. Rosenstein — detailing the decision made about whether or not to bring charges. But there is no guarantee that such a report would be made public.
Mr. Carlin suggested that congressional leaders should try in advance to obtain assurances that if Mr. Mueller uncovers potential evidence of criminal conduct by Mr. Trump, “that evidence will be disclosed in detail to Congress once the investigation is concluded.”
Mr. Lacovara had another suggestion.
If others are criminally charged, then the special counsel’s team could detail Mr. Trump’s actions in their charging documents and label the president as an unindicted co-conspirator — a tactic employed with Nixon.
Controversy continued to swirl with a Washington Post report Wednesday in which unidentified sources claimed Mr. Mueller’s investigation had expanded beyond Russian meddling to include an exploration of Mr. Trump’s recent conduct — including the firing of Mr. Comey on May 9.
The Post reported that Mr. Mueller is seeking to interview Trump administration officials uninvolved with the presidential campaign, including Director of National Intelligence Daniel Coats, National Security Agency Director Adm. Michael S. Rogers and former NSA Deputy Director Richard Ledgett, with the goal of assessing whether anyone tried to block the Russia probe.
A spokesman for Mr. Mueller told The Times on Thursday that Office of Special Counsel simply had no comment on the direction of the special counsel’s probe, but Mr. Trump’s personal attorney said through a spokesman that the leaks were “outrageous, inexcusable and illegal.”
A source close to Mr. Coats confirmed that the director of national intelligence would be interviewed by Mr. Mueller but suggested that the director had not been notified by about the focus of the questions. A spokesman for Mr. Coats declined to comment.
An Associated Press poll showed Thursday that a clear majority of Americans believe Mr. Trump tried to interfere with the investigation into whether Russia meddled in the election and possible Trump campaign collusion. Just 1 in 5 said they supported Mr. Trump’s decision to fire Mr. Comey.
The AP-NORC Center for Public Affairs Research poll found just over half of Americans say they disapprove of Mr. Trump’s firing of Mr. Comey. The number grows to 79 percent among Democrats. Overall, only 22 percent of Americans support Mr. Comey’s dismissal.
Some unsolicited help came Thursday from an unexpected quarter: the Kremlin, where Russian President Vladimir Putin was holding his annual marathon call-in show for ordinary Russians to ask him questions.
“It looks weird,” Mr. Putin said, “when the chief of a security agency records his conversation with the commander in chief and then hands it over to media via his friend. What’s the difference then between the FBI director and Mr. Snowden?”
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