by Dan Froomkin
Special counsel Robert Mueller is now investigating whether Donald Trump's conduct toward former FBI Director James Comey constituted obstruction of justice.
Comey made that pretty clear on Thursday during his testimony to the Senate Intelligence Committee. "I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct," he said. "That's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense."
Asked again, Comey replied: "I don't know, that's Bob Mueller's job to sort that out."
What is less clear is how enthusiastically Mueller, whose mandate is to investigate the wider issue of Russian interference with the 2016 presidential election, will explore that particular topic – and, if he reaches the conclusion that Trump did indeed obstruct justice, what he can do about it.
On Friday afternoon at a press conference, Trump accused Comey of lying about their conversations and, in an unwitting endorsement of Mueller's investigation, said he would be "100 percent" willing to be deposed by Mueller under oath.
"I would be glad to tell him exactly what I just told you," Trump said, raising the possibility that he could end up being accused of perjury as well as obstruction of justice.
At the American Constitution Society (ACS) convention, running from Thursday through Saturday, top progressive lawyers said Trump's behavior certainly appears to constitute obstruction. They said they hope Mueller investigates Trump's conduct vigorously, with plenty of subpoenas and interviews.
"I think certainly the role of the president in an effort to potentially obstruct the investigation is a critical part of any investigation about Russian efforts to influence the election," ACS President Caroline Fredrickson said.
"I think he should plow ahead on obstruction of justice," said Stanford Law School professor Pam Karlan.
And they said that if Mueller determines criminal conduct has in fact taken place, he has to find some way to go public with his findings.
That, however, is where it gets tricky.
Fredrickson said that if Mueller would then have essentially two options: "One would be for the special counsel to pursue some kind of an indictment. And the second would be for him to refer his findings to the House for impeachment," she said.
"There is a lot of debate about whether the first path is permissible," she said. "Many scholars think it is; many scholars think it is not."
Fredrickson thinks it is certainly something Mueller should consider. "Impeachment tends to be the option that most people think is the appropriate solution to an illegal act by the president, but it doesn't necessarily preclude criminal prosecution."
In fact, the impeachment process raises more than its share of obstacles to justice. The first one, of course, is that impeachment is a political process rather than a criminal one, and therefore subject to almost no rules at all.
And because Mueller is a special counsel – not an independent counsel, like Kenneth Starr was – there is no precedent for him to report his findings to Congress. His job, like all other prosecutors, is to seek an indictment – or not. After an indictment, prosecutors can present their evidence in court, under the supervision of a judge. And if there is no indictment, there is generally no legitimate avenue for them to discuss the case at all.
But Fredrickson suggested that perhaps Congress could solicit a report from Mueller – or, at the very least, have him come testify. Although Mueller would be precluded by grand jury secrecy rules from discussing any matter that passed through the grand jury, he could still at least discuss his conclusions and any non-grand-jury related information.
"He's got to take it to Congress," Karlan said. She suggested maybe Mueller could encourage his witnesses to testify on Capitol Hill.
The debate about whether presidents can be indicted generally turns to two memos from the Justice Department's Office of Legal Counsel – one from the Nixon era and the other from the Clinton era. They concluded that a sitting president can not be indicted or prosecuted
But Georgetown University Law professor Peter Edelman suggested that Mueller thread the needle. "Mueller can indict him, but he can't be tried while he's president," Edelman said.
So if Mueller determines Trump committed a crime, he should go ahead and indict him. Then hit the pause button.
What happens then? "That's going to cause a lot of other things to happen that we can't predict," Edelman said.
Indeed, the 1973 OLC memorandum – as quoted in the 2000 OCL memorandum -- acknowledges that, "it is arguable that . . . it would be possible to indict a President, but defer trial until he was out of office, without in the meantime unduly impeding the power to govern, and the symbolism on which so much of his real authority rest."
(It also concludes that "[g]iven the realities of modern politics and mass media, and the delicacy of the political relationships which surround the Presidency both foreign and domestic, there would be a Russian roulette aspect to the course of indicting the President but postponing trial, hoping in the meantime that the power to govern could survive.")
According to Mueller's mandate, he "is authorized to prosecute federal crimes arising from the investigation of these matters." That does not sound like he needs anyone else's permission. So arguably, he could present the facts to a grand jury, and if the grand jury votes to indict, that indictment would be returned to a magistrate judge.
Federal grand jury rules allow the magistrate judge to seal the indictment – but there is no procedure for rejecting it.
"I guess then Trump's people have to come in and move to dismiss the indictment on the grounds that he can't be prosecuted while he's president," Karlan said. "And once that's all revealed – I mean if a grand jury actually indicted – I would think at that point Congress has to open an investigation."