While Jeff Sessions was testifying Tuesday on Capitol Hill, Sen. Ron Wyden suggested that the attorney general had recused himself from investigating Russian electoral meddling because of unknown, “problematic” reasons. “There are none—I can tell you that for absolute certainty,” Mr. Sessions shot back, dismissing the supercilious charge as “secret innuendo.”
Good for Mr. Sessions. But since Democrats seem intent on preparing the battlefield for the 2018 midterm elections, expect more such baseless charges. Never mind the damage they do to public trust.
Consider the accusation that President Trump obstructed justice in the FBI investigation of former national security adviser Mike Flynn. According to former FBI Director James Comey, the president told him: “I hope you can see your way clear to letting this go, to letting Flynn go.”
“There’s no question he abused power,” House Minority Leader Nancy Pelosi said last week. Two Democratic backbenchers, Reps. Al Green of Texas and Brad Sherman of California, have even drafted articles of impeachment based on the charge.
But I talked to four legal experts—two former Justice Department officials, a former White House lawyer and a former U.S. attorney—who all agreed Mr. Trump has the rightful power, as head of the executive branch, to order the FBI to end any investigation.
One expert raised this thought experiment: If President John F. Kennedy had ordered FBI Director J. Edgar Hoover to stop investigating Martin Luther King Jr., would that have constituted obstruction of justice?
It’s also far from clear Mr. Trump ordered anything. His words were vague. A hope is not an order. The president said he wanted to get to the bottom of Russian election meddling. He added that he hoped Mr. Comey would discover whether any of Mr. Trump’s “satellites”—an apparent reference to people who worked in his presidential campaign—had done anything wrong. Both statements suggest Mr. Trump wanted the Russian investigation to go forward and believed it would clear his name.
The statute that describes obstruction of justice speaks of “corrupt” conduct. Yet there is no evidence Mr. Trump acted with criminal purpose—for example, that he was bribed to shut down the Flynn investigation, or that he was trying to hide some personal financial interest in Mr. Flynn’s foreign lobbying. No wonder Mr. Comey, when discussing the conversation at the time with other officials, didn’t claim obstruction.
Still, Mr. Trump has created a potential problem for himself. At a Friday press conference, ABC’s Jonathan Karl asked the president whether he would be “willing to speak under oath to give your version of those events.” Mr. Trump replied: “One hundred percent.”
The president had better hope that Robert Mueller, the special counsel now looking into potential Russia-Trump ties, is nothing like Patrick Fitzgerald, the special counsel appointed in 2003 to investigate the leaking of a CIA official’s name to the columnist Robert Novak.
Mr. Fitzgerald knew within days, if not hours, of his appointment that the leak had come from Deputy Secretary of State Richard Armitage but that it violated no law since the CIA employee was no longer a covert operative.
Despite no underlying crime, Mr. Fitzgerald spent more than three years obsessed with trying to justify his existence by prosecuting someone in the Bush White House for lying under oath. I was one of those in his sights.
He focused on me because, while I could not remember a brief call in 2003 from a Time reporter, I had ordered my staff the following year to search for any evidence I had talked to the journalist. That was supposed to be proof I had lied. Mr. Fitzpatrick gave up hunting me only when he learned that my lawyer had directed me to search my files after hearing from the reporter’s colleague that I had talked with him.
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Instead Mr. Fitzpatrick indicted the vice president’s chief of staff, Lewis “Scooter” Libby, a very good man, on a disagreement over who said what, when and to whom.
Today, given what we know, Mr. Trump is not vulnerable on obstruction of justice. But if Mr. Mueller turns out to be another Mr. Fitzgerald and finds no underlying offense, he may decide that he must still get someone for something, even over inconsequential differences of memory.
Promising to speak under oath is dangerous for Mr. Trump, since any trial would be in Washington, D.C. There were no Republicans on Mr. Libby’s jury, and Mr. Trump received a mere 4% of the vote there. The president better pray Robert Mueller is more responsible than Patrick Fitzgerald.