In the age of Donald Trump, conservative jurists, legal theorists, and political commentators have adopted a very, very narrow definition of what constitutes “obstruction of justice.” That’s because the current Republican president of the United States’ conduct—irrespective of what did or did not happen during the campaign—clearly violates the spirt of the “obstruction” law, if not (yet) the letter. The president can fire who he wants; he can bully and cajole, order and insinuate, their thinking goes, but, throughout, the one thing these definitional constrictionists have agreed upon as legally problematic—and often point to as a counterexample of what would constitute obstruction of justice—is if the president ordered a witness to lie to investigators. A New York Times report Wednesday doesn’t go that far, but it does reveal that President Trump discussed with witnesses after the fact their testimony to investigators, which has the president again tiptoeing along a very slippery legal slope.
It’s hard to overstate the recklessness of Trump engaging with high-profile witnesses—the current White House counsel and former chief of staff—about their testimony, no matter how innocuous. It indicates an awareness on the part of the president of the potential impropriety of past actions and gives the appearance of possible coordination of testimony to square any discrepancies. Even if you assume, or believe, Trump has done nothing wrong at any point, the discussions with witnesses would require extra scrutiny by Mueller’s investigative team as the kernel of potential wrongdoing.
The first instance of Trump discussing the testimony of a key witness was with White House Counsel Don McGahn in January after a New York Times article reported that the White House lawyer told investigators Trump has ordered him to fire special counsel Robert Mueller, but McGahn refused and threatened to resign if Mueller was sacked.
Mr. McGahn did not publicly deny the article, and the president later confronted him in the Oval Office in front of the White House chief of staff, John F. Kelly, according to the people. The president said he had never ordered Mr. McGahn to fire the special counsel. Mr. McGahn replied that the president was wrong and that he had in fact asked Mr. McGahn in June to call the deputy attorney general, Rod J. Rosenstein, to tell him that the special counsel had a series of conflicts that disqualified him for overseeing the investigation and that he had to be dismissed. The president told Mr. McGahn that he did not remember the discussion that way. Mr. Trump moved on, pointing out that Mr. McGahn had never told him that he was going to resign over the order to fire the special counsel. Mr. McGahn acknowledged that that was true but said that he had told senior White House officials at the time that he was going to quit.
The second instance involves former chief of staff Reince Priebus, who left the White House in July 2017 but has maintained contact with Trump and occasionally visits the White House. During one visit, in December, Trump met with Priebus in the West Wing.
Mr. Trump asked [-] Priebus, how his interview had gone with the special counsel’s investigators and whether they had been “nice,” according to two people familiar with the discussion… Mr. Priebus replied that the investigators were courteous and professional. He shared no specifics and did not say what he had told investigators, and the conversation moved on after a few minutes, those briefed on it said. Mr. Kelly was present for that conversation as well, and it was not clear whether he tried to stop the discussion.
To get a sense of how McGahn and Preibus and the others present for these conversations interpreted the interactions, the Times reports, “[the] witnesses and lawyers who learned about the conversations viewed them as potentially a problem and shared them with Mr. Mueller.”