Trump's loyalty obsession could lead to obstruction case
Posted February 20, 2019 1:00 a.m. EST
CNN — President Donald Trump's craving for loyalty from his top law enforcement officials and alleged efforts to topple those whom he perceives as threats could be leading him into deep trouble -- and even put his presidency in peril.
The New York Times provided a fresh glimpse into Trump's persistent efforts to shield himself from swirling scandals with a report that the President sought to install someone he saw as an ally atop an investigation by New York prosecutors into his former lawyer Michael Cohen.
Then, in an interview with CNN, former acting FBI Director Andrew McCabe -- who was instrumental in opening an obstruction inquiry against Trump -- made his strongest claim yet that he was fired hours before his scheduled retirement as a result of an internal investigation rigged against him at the instigation of the President.
The revelations appear to fit into a consistent pattern of attempts by Trump to influence investigations in which he may be implicated and a constant campaign of public and private pressure on the officials involved.
They beg the mysterious question yet again why, if the President insists there was no coordination between his 2016 campaign and Russia's election meddling plot, has he taken such pains to undermine investigations into what he has branded a huge "hoax?"
The New York Times reported that Trump called acting Attorney General Matt Whitaker late last year to ask whether it was possible that Geoffrey Berman, the US attorney for the Southern District of New York, who was recused from the case, could take over anyway.
Trump denied the report, saying to reporters, "I don't know who gave you that."
Even in his public remarks, the President has often left the impression that top law enforcement officers had a duty to protect him -- like a personal lawyer -- rather than to the neutral administration of justice and to the Constitution.
Fired FBI Director James Comey said Trump tried to establish a mob-like relationship of patronage with him. Trump also repeatedly berated his former Attorney General Jeff Sessions over his failure to rein in the Russia probe.
Trump has mounted relentless, almost daily attacks on special counsel Robert Mueller's inquiry and other investigations targeting his administration.
In the worst-case scenario, his incessant private, public and political efforts to influence the investigations could add up to obstruction of justice in plain sight -- and even form part of any future articles of impeachment.
Asked by CNN's Brooke Baldwin whether Trump's request to Whitaker amounted to obstruction, Elie Honig, a former federal prosecutor, answered: "What else could it be?"
"What other reason could the President have for calling Matt Whitaker right as the Cohen investigation was growing and starting to threaten him ... and asking Whitaker, 'Can we get my guy?'" he said.
Paul Rosenzweig, a senior counsel to the Whitewater investigation, told Baldwin that if confirmed, the reporting about Trump could amount to a possible abuse of power.
"It's really hard to come up with an innocent explanation for asking somebody to unrecuse from a recusal that seems wholly appropriate," he said. "It is a little early to say for sure what the facts are since Mr. Whitaker has sort of denied this -- but if the facts prove out as it is, this is potentially impeachable."
Trump's lawyers have argued that his firing of Comey and attempts to intervene in personnel decisions in the Justice Department are consistent with his titular authority as the nation's top law enforcement official.
In a confidential letter sent to Mueller last year, Trump's lawyer Jay Sekulow and his then-colleague John Dowd argued that "no President has ever faced charges of obstruction merely for exercising his constitutional authority."
They said that a President can "order the termination" of a Justice Department or FBI investigation "at any time and for any reason."
But many legal experts believe that should Mueller establish corrupt intent, the normal standard for an obstruction charge in a criminal case, it could be conduct that could be taken up in the political context of an impeachment case.
Trump's assertion in an NBC News interview that he fired Comey because of the Russia investigation could be evidence for such a finding in any final report that the special counsel decides to file.
There is historical precedent for a presidency running into existential peril after an attempt to interfere in the investigative process.
The Articles of Impeachment drawn up against Richard Nixon accused the disgraced former president of "interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation ... and congressional committees."
The New York Times reported that Whitaker knew that he could not ask Berman to recuse himself and that Trump soured on his interim appointee when he could not make the President's legal problems go away.
The Cohen case has turned out to be especially troublesome for Trump because it opened a path for prosecutors into his private and business affairs. In a guilty plea, his former lawyer, Michael Cohen, said Trump ordered him to arrange payments to two women who claimed they had affairs with him -- effectively making the President an unindicted co-conspirator in a violation of campaign finance law.
Silent circle of assent
McCabe told CNN's Anderson Cooper on Tuesday night while promoting his new book that Trump posed a threat to the FBI and the nation and said it was "possible" that the President was a Russian asset.
He renewed his charge that he was fired because he had done his duty in initiating an inquiry into Trump's behavior.
The White House argues that McCabe has no credibility because he is under criminal investigation for allegedly misleading investigators in their probe of the FBI's handling of the investigation into the Clinton Foundation.
But he suggested that an independent departmental report used as justification for his dismissal was improperly influenced by Trump.
"The President very publicly demanded a result and the office of the Inspector General delivered that result ... the President desired that I be gone before I could be eligible to retire."
White House counselor Kellyanne Conway said on CNN's "Cuomo Prime Time" that McCabe was "a liar, and a leaker."
Trump's alleged propensity to lean on his top law enforcement aides first emerged in stunning public testimony, contemporaneous memos and autobiographical writings written by Comey.
Trump told the then FBI director early in his presidency, according to one leaked memo, that "he needed loyalty and expected loyalty."
In his book "A Higher Loyalty," Comey wrote that the President's retinue reminded him of the "silent circle of assent" around Mafia kingpins he had prosecuted.
"The boss in complete control. The loyalty oaths. The us-versus-them worldview. The lying about all things, large and small, in service to some code of loyalty that put the organization above morality and above the truth," Comey wrote.
Trump clearly expected that the kind of protection he did not get from Comey to come from former Attorney General Jeff Sessions, and never forgave him from recusing himself from oversight of Mueller's Russia investigation.
"The Russian Witch Hunt Hoax continues, all because Jeff Sessions didn't tell me he was going to recuse himself," Trump tweeted on June 5 last year, four months before the attorney general eventually resigned.
"I would have quickly picked someone else. So much time and money wasted, so many lives ruined...and Sessions knew better than most that there was No Collusion!" Trump added.
The President also several times demanded to know why Sessions had not prosecuted the "corruption" of Democratic presidential nominee Hillary Clinton -- in a chilling call for a politically motivated investigation against a political opponent.
The President hinted at his belief that the attorney general should serve as a kind of personal legal bodyguard when he voiced his opinion of former Obama administration Attorney General Eric Holder.
"I will say this: Holder protected President Obama. Totally protected him," Trump said in an interview with The New York Times in December 2017.
It is not known what Whitaker might have told the President in private conversations after he was read into the Mueller investigation. He insisted in a hearing before a House committee this month that he had not "interfered with the special counsel's investigation in any way."
But his unwillingness to put Berman in charge of the Cohen investigation does suggest legal structures within the Justice Department are standing firm, despite Trump's relentless pressure.
There was also no sign that Berman would have agreed to such a step.
Preet Bharara, a former US Attorney for the Southern District of New York, was fired by Trump but only after the President called him in what the now CNN commentator sees as an attempt to cultivate a relationship.
"He's a kind of a person who doesn't understand that rules have to operate in a particular way and regular order needs to be followed whether it is recusal or arms length distance between a United States attorney or investigator and the President of the United States," Bharara told CNN's Jake Tapper on "The Lead" on Tuesday.