Wait…But How Serious is the Mueller Thingy for Trumpy? A Summary of Jeff Toobin’s Fantastic Legal Analysis

The media frenzy surrounding Robert Mueller’s investigation into Trump’s campaign and its possible collusion with Russia has made for some salacious, exciting reading that is rife with conjecture, theories, and prognostications of impeachment. It is also the subject of intense skepticism and ridicule by conservative media outlets and the White House, which has labeled the investigation a fruitless “witch hunt” that is only months (or weeks, if you are Trump’s lawyers) from being abandoned. I, like many, have been eagerly inhaling all of this media exhaust, but it was not until I came across Jeffrey Toobin’s clear-eyed, legal analysis of the current status of the Mueller investigation in the New Yorker and his subsequent interview on NPR’s Fresh Air with Terry Gross that I realized how little I understood of the investigation and its potential ramifications for Trump. What I discovered, perhaps unsurprisingly, is that the dangers that this investigation poses for Trump’s presidency lie somewhere between the calls for impeachment coming from the mainstream media and the collective eye roll coming from the pro-Trumpers. I highly recommend that you check out both the New Yorker article and the Fresh Air interview. However, in case you are short on time (the content is lengthy), I gathered some of my high-level takeaways from Toobin’s thoughts below.

Q: What crimes may Donald Trump have committed that Mueller is investigating?

There are three areas of criminal inquiry of the Mueller investigation:

1. Illegal lobbying activity of Trump campaign associates – Trump is not under investigation here
   • This focuses on Trump associates (Manafort, Gates, and Flynn) and is unlikely to implicate Trump directly. However, Mueller may use discoveries of wrongdoing here as a bargaining chip to extract more information from those close to Trump. Specifically, he will be looking for more information on the next two areas of the investigation detailed below that would implicate Trump more directly.
     
2. Collusion between Russia and the Trump Campaign – Trump looks suspicious here but likely not guilty
   • “Collusion” is not a crime under federal law, so Mueller is likely looking into possible criminal activity related to collusion. Toobin surmises that both are related to WikiLeaks and its hacking of email accounts associated with Hillary Clinton’s campaign and the Democratic National Committee. Two potential crimes are:
     • The Trump campaign received “in-kind” donations from WikiLeaks in the form of information (emails) that they hacked. Since federal law prohibits political campaigns from seeking or obtaining contributions from foreign individuals or entities, proving this would be a crime.
     • The Trump campaign aided and abetted WikiLeaks hacking of emails, which is illegal.
   • Proving criminal activity for both will be difficult as for the first, Mueller will have to use the novel argument that “information” constitutes an “in-kind” campaign contribution and for second, Mueller would have to prove that the Trump campaign somehow helped WikiLeaks hack the DNC or, if they did not know about the hacking before it occurred, make the argument that the Trump campaign distributed these emails knowing they were obtained illegally (proving this “knowledge” will be very difficult). Finally, it is possible that Mueller can link some of the crimes above to Trump’s associates but not Trump himself.
3. Trump obstructed justice – Trump is almost certainly guilty, but can he be prosecuted?
   • There are two cases where Trump appears to have obstructed justice:
     • Trump fired James Comey for “corrupt motives,” i.e. to stop the investigation into himself and his campaign. Trump essentially has admitted to this on two separate occasions: 1.) May 10th in a meeting in the Oval Office with the Russian Ambassador and Foreign Minister, 2.) May 11th, in an interview on NBC with Lester Holt.
     • By asking Comey to “take it easy” on Flynn when Trump knew he lied to the FBI. Trump admitted he knew that Flynn had lied to the FBI via a tweet on December 2nd.
       • It’s an open question if he pressured Comey (Trump denies Comey’s account) and, if he did, Mueller would have to prove that Trump knew before this exchange that Flynn lied to the FBI.
   • Trump is likely guilty here but it is an open constitutional question whether or not a sitting President can be prosecuted for a crime while in office. This is the crux of Trump’s lawyer’s argument that he cannot be charged criminally with obstruction of justice.
   • However, it is a clear-cut matter of historical precedent that Presidents can be impeached for obstruction of justice (see Nixon and Clinton).

Q: There’s been a bit of chatter about Trump and team’s possible violation of the Logan Act between the election and Inauguration Day, specifically as it relates to discussions they had with the Russians. Why does Toobin not this reference this as a potential problem for Trump?

The New York Times editorial board recently suggested that Trump, if he ordered Flynn to negotiate with Russians ahead of his assumption of office, could possibly have violated the Logan Act, a federal law which states that private citizens cannot negotiate with foreign powers without the consent of the current President’s Administration. However, Toobin likely left this out given that many legal experts argue that any attempt to prosecute Trump and team under this law, which has never been successfully enforced in over 200 years of existence, could successfully be rebuffed by claiming “desuetude” status for the law (desuetude is  the legal doctrine that posits criminal statutes may lapse if they are never enforced).

Q: Outside of criminal behavior, what else could be problematic for Trump?

The impeachment clause of the Constitution states that the President can be impeached for the “conviction of, treason, bribery, or other high crimes and misdemeanors,” so, in addition to “high crimes and misdemeanors” committed by Trump, Mueller is likely looking into possible “bribery” given his extensive business dealings with Russian interests (which would be the reason Mueller is allegedly interested in Trump’s bank records). “Treason,” on the other hand, is defined in the Constitution as “levying war” against the United States, which is likely inapplicable to Trump’s conduct.

Q: So what are the potential outcomes of Mueller’s investigation?

There really are three potential outcomes, which are listed in increasing order of likelihood according to Toobin:

1. Mueller finishes his investigation and says “no crimes or anything to report” as it relates to Donald Trump. – Unlikely
2. Mueller brings criminal charges against Donald Trump for obstruction of justice and/or the crimes related to collusion above. – Could happen but would be unprecedented for a President to be charged of a crime while in office and would raise serious Constitutional questions.
3. Mueller provides a report to Congress, detailing all of the dubious connections between Trump’s campaign and Russia while details how Trump may have obstructed justice – This the most likely outcome

Q: Ok, so if Mueller produces a relatively damning report of Trump, then what happens? Impeachment?

If Mueller provides a report to Congress, then what Congress does with the findings of his investigation becomes a political matter, i.e. is Congress willing to move forward to impeach Trump? In all likelihood, impeachment will happen only if Democrats control one or both house of Congress (as a matter of precedent, impeachment proceedings have only started when the majority party in Congress differs from that of the President). In short, the 2018 elections are just as important in determining whether or not Trump gets impeachment as the substance of the report that Mueller produces.

Q: Wait, so really, in the end, the outcome of Mueller’s investigation really just comes down to politics?

Yup, that’s right. Welcome to Washington, D.C. folks.