President Trump’s own actions, as reported on Thursday night, have strengthened the case for obstruction of justice against him, despite the significant legal obstacles to pursuing such a case against a sitting president.
Trump ordered his White House counsel, Donald F. McGahn II, to fire Special Counsel Robert Mueller, who is investigating Russian interference in the 2016 election and potential obstruction of justice by the president, The New York Times reported. Trump relented only when McGahn threatened to resign, an echo of the 1973 Saturday Night Massacre, in which President Nixon’s top Justice Department officials resigned rather than carry out his order to fire the special counsel investigating the Watergate break-in.
Obstruction of justice is a crime that depends on a person’s state of mind, and so is difficult for prosecutors to prove. The law on whether a sitting president can be prosecuted, as opposed to impeached and removed from office by Congress, is unsettled. But legal experts say that Trump’s pattern of behavior has made the case against him much stronger, because that pattern shows Trump repeatedly attempting to undercut the investigations into Russian interference and obstruction, and then in some cases misleading the public about it. That Trump was unsuccessful in firing Mueller is irrelevant—obstruction is a crime whether or not the attempt succeeds.