By 1971, Richard Nixon was already engaged in the sordid scheming that would lead to his resignation. By then, the famously paranoid president had developed a habit of ordering his subordinates to perform reckless, even criminal acts. The most famous among them was perhaps Nixon’s half-baked plan to steal Vietnam War-related files from the Brookings Institution by any means necessary, even if it meant firebombing the place. Nixon’s aides would nod along while allowing these politically suicidal impulses to wither on the vine, temporarily saving themselves and their boss from the consequences of his worst instincts.
The only difference between Richard Nixon and Donald Trump, it seems, is that Nixon drank.
Special counsel Robert Mueller’s redacted report on the conduct of Donald Trump’s administration in its first year establishes a few definitive conclusions, among them that the president’s first year in office was a muddled mess. It also confirmed that neither Trump nor his subordinates knowingly collaborated with a hostile foreign power — namely, Russia — to influence the course of American political affairs.
But while Trump has been all but absolved of the charge that he “colluded” with Moscow to win the White House, the report is not nearly as exculpatory when it comes to Trump’s efforts to impede the Mueller probe. Though the investigation was conducted in a thorough and impartial manner with the cooperation of the White House, that feat was achieved despite the president’s efforts. The probe completed its work because Trump’s aides prudently and repeatedly declined to follow the president’s orders to thwart its progress.
Thus, the special counsel’s conclusions regarding Trump’s culpability in relation to obstruction were far more ambiguous than Attorney General William Barr made it seem at his Thursday press conference. The president’s unrealized desires to see the investigation undermined have put Trump’s critics in the unenviable position of having to argue the case that Trump attempted to obstruct justice, albeit unsuccessfully. That’s a complicated and nuanced argument — one that is unlikely to favor its proponents. But the Mueller report doesn’t shut the door entirely on the idea that the president exceeded the bounds of his authority.
Following the February 2017 revelation that then-national security advisor Michael Flynn misled Vice President Mike Pence about the nature of his contacts with Russia’s late ambassador to the United States, Sergey Kislyak, Trump appeared humiliated by the episode. Mueller’s report indicates that Trump told former deputy national security advisor K.T. McFarland to draft a letter indicating that Flynn had gone rogue by reaching out to Russian diplomatic officials without Trump’s permission. But McFarland was discomfited by the request to memorialize in writing something she did not know to be true. She ended up following the advice of Trump’s aides, including former Chief of Staff Reince Priebus, to “not write the email and to forget he even mentioned it.”
When Trump fired James Comey from his post as FBI director, the president took an active role in managing the political fallout. Though he was reportedly satisfied with the positive coverage Comey’s dismissal was receiving on Fox News, Trump didn’t want to assume responsibility for the personnel shakeup amid an investigation into his conduct. So, the president called Deputy Attorney General Rod Rosenstein and urged him to hold a press conference in which he would claim a role in deciding Comey’s fate. “Rosenstein responded that this was not a good idea,” the report revealed, “because if the press asked him, he would tell the truth that Comey’s firing was not his idea.”
In the summer of Trump’s first year in office, Trump fumed over the appointment of a special counsel to investigate his conduct in 2016. He wanted Mueller’s probe disbanded, and he was willing to act on those impulses. He even went so far as to call former White House counsel Don McGahn at home to order the acting attorney general to dissolve the probe. McGahn declined. The report indicated that McGahn said “he would resign rather than trigger what he regarded as a potential Saturday Night Massacre,” a reference to another episode of Nixonian overreach that contributed to the unraveling of the 37th president’s administration.
When McGahn proved an unwilling co-conspirator, Trump approached a more reliable fixer — his former campaign manager, Corey Lewandowski — to rid himself of the meddlesome Mueller. Trump reportedly ordered Lewandowski to force former Attorney General Jeff Sessions to issue a statement attacking the special counsel’s unfairness toward Trump, but even Lewandowski recognized the peril in such an act and did nothing. When Trump reminded Lewandowski of his order, Lewandowski outsourced it to senior White House official Rick Dearborn, who was also “uncomfortable with the task” and also declined to “follow through.”
'To prevent or impede the FBI'
Trump repeatedly ordered Sessions to retract his decision to recuse himself from the investigation into the campaign’s activities, but Sessions repeatedly declined, even though he was publicly berated by the president for it. When the New York Times revealed that Trump had ordered McGahn to dissolve the Mueller probe, the president asked his chief counsel to issue a mendacious statement to the press denying that event had ever occurred. But it did occur, and McGahn refused to lie about it. “The President's efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or acceded to his requests,” the Mueller probe concluded.
Because Trump’s demands were not realized in the actions of his subordinates, divining their effects or the president’s intent behind them is a subjective activity. As such, his actions are not prosecutable — even if the Justice Department was inclined to indict a sitting president, which it is not. But even the actions the president did take cannot be considered overtly obstructionist.
For example, the report prudently noted that “the anticipated effect of removing the FBI director, however, would not necessarily be to prevent or impede the FBI.” The special counsel’s office smartly chose to present this damning evidence without divining Trump’s intent, in part, because to do so would be to speculate about an alternative timeline in which the president’s obstructive impulses were not thwarted by his subordinates. That’s not what prosecutors do.
The Mueller probe may clear the president of criminal misconduct, but it doesn’t make him or almost anyone in his inner circle look great. The probe alleged that press secretary Sarah Sanders lied to the public. It contends that Donald Trump Jr. was in close contact and cooperative with Wikileaks, which we have subsequently learned was a catspaw for Russian military intelligence. And the report notes in exacting detail that Donald Trump would have obstructed the conduct of justice but for his savvier aides and advisors. Trump may be off the hook, but he doesn’t come off smelling any sweeter.
Noah Rothman is the associate editor of COMMENTARY Magazine
This piece was first published by NBC Think.