Trump issued his most explicit and public call on Jeff Sessions to shut down the probe on Wednesday, the latest of a series of threats and pressure on the attorney general and the Justice Department that if carried out would move the drama into Nixonian territory.
Trump has denied all knowledge of the encounter.
Trump’s words on Sessions set his lawyers and subordinates scrambling and could become a legal liability as the special counsel seeks to establish whether there was a corrupt motive in any effort by the President to obstruct justice.
Those musings set off a torrent of speculation over whether Giuliani understands there is evidence to support such a finding by Mueller and whether he was therefore trying to defuse its potential impact.
Then, on Wednesday, Giuliani again upped the stakes, warning that the coming midterm election would be fought on the question of whether Trump would be impeached.
His comment was clearly part of an effort by Trump’s team to motivate the President’s supporters to go the polls in the midterm election to stave off a blue wave that could help Democrats seize the House of Representatives.
But it also implied that Mueller could produce evidence in a report that Deputy Attorney General Rod Rosenstein will feel compelled to send to Congress for possible impeachment proceedings.
A Republican House is seen as far less likely to move against the President, especially after the President’s intense efforts to persuade his supporters that the Mueller investigation is corrupt, unfair and biased against him. It could be a much different story under a new Democratic House if the midterms go against the GOP.
Since no one outside Mueller’s inner circle knows the extent of the evidence he has collected, and few people not in Trump’s orbit have a full picture of his potential exposure, it is impossible to say for sure what is motivating the apparent evolution in the President’s defense.
But it does appear that significant statements from the President this week and his legal and political teams at least embrace the possibility that their defense must eventually need to move on from the theoretical possibility of an adverse report by Mueller to a practical response to such an eventuality.
Could a tweet be evidence of obstruction?
Trump’s tweet to Sessions immediately provoked conversation about whether he had shown an intent to obstruct justice in plain sight, following a long succession of previous tweets pressuring Sessions that appear to undermine arguments that Trump was acting with no malice in firing former FBI Director James Comey at the time he was in charge of the Russia investigation.
“This is another piece in the puzzle to someone trying to put together a picture of attempted obstruction,” said Preet Bharara, the former US attorney for the Southern District of New York on CNN’s “The Situation Room.”
“Over time, a portrait is developing that the President wants the Russia investigation to be ended.”
But Giuliani and the White House argued that the President was merely exercising his right to free speech and offering an “opinion.” The former New York mayor pointed out that Trump said Sessions “should” stop the probe not that he “must” stop the probe.
White House press secretary Sarah Sanders, while lashing the “corruption” and “dishonesty” of the “witch hunt,” said, “It’s not an order, it’s the President’s opinion.” In defense of the President, other Republicans pointed out that Sessions did not have the capacity to end the investigation anyway, since he has recused himself in favor of Rosenstein.
The pushback from the Trump camp revived the debate over whether Trump’s tweets are official statements of policy and intent, or should merely be taken as some kind of ongoing conversation with the American people that has no political or legal significance.
“Your motivation, the reason why you do something, your opinion actually has legal significance here,” said Susan Hennessey, a CNN legal and national security analyst. “We know that Robert Mueller is looking at these tweets for exactly this purpose.”
The tweet could also take on more significance should Trump decide in future to dismiss Sessions in order to appoint an attorney general who is not recused from oversight of the Mueller investigation who would be prepared to shut it down.
But Giuliani this week ridiculed the notion of “obstruction by tweet.”
Trump in a dark place
“Looking back on history, who was treated worse, Alfonse Capone, legendary mob boss, killer and ‘Public Enemy Number One,’ or Paul Manafort, political operative & Reagan/Dole darling, now serving solitary confinement – although convicted of nothing? Where is the Russian Collusion?” Trump tweeted.
But his behavior is perplexing allies who believe that the President would be best served by not behaving in a way that makes it look as though he has something to hide and expects Mueller’s investigation to be ultimately damaging towards him.
“The President can voice his opinion, I don’t deny him that ability, in this case I wish he wouldn’t I just don’t think it helps him,” Republican Rep. Chris Stewart of Utah told CNN’s Wolf Blitzer.
He added, “I wish he would just let the special counsel finish his work and show the American people what he has found.”