Here’s the rest of the NRO piece. But here’s the relevant part, that legally Trump can’t be found to ‘obstruct’ a counterintelligence investigation. This is what people keep missing in discussion of the case.
The theory behind this aspect of the special counsel’s work is that President Trump obstructed the Russia probe by, principally, (a) leaning on Comey to drop the investigation of Michael Flynn, (b) firing Comey, and (c) “threatening” to fire Mueller. Here is the problem: The Russia investigation is principally a counterintelligence investigation into Russia’s interference in the 2016 investigation. The president cannot interfere in a counterintelligence investigation. Trump can no more obstruct the Russia investigation by taking actions that could conceivably affect it than Obama could obstruct the Russia investigation by being briefed on it and giving the FBI directions on it. Counterintelligence investigations are conducted for the president.
The point of the Russia investigation is to gather the information that President Trump needs to protect the country, including our electoral system. You can snicker at that all you want if you are Trump-deranged and invested in the fantasy that Trump “colluded” with Russia to undermine our electoral system. But the following happen to be constitutional facts: Trump is president and counterintelligence operations are conducted for the purpose of informing him, not for the purpose of building criminal prosecutions.
If Mueller was to be engaged in a criminal investigation of Trump, the Justice Department was supposed to make that clear in defining the scope of the special-counsel appointment. It did no such thing.
But let’s set that aside. According to Director Comey, Trump was not a criminal suspect. Asking Comey to go easy on Flynn — who was under criminal investigation for lying to the FBI — cannot legitimately have turned Trump into a suspect. As we’ve covered at length, the president is authorized to exercise prosecutorial discretion (an executive power) by weighing in on the merits of prosecuting a person; Trump did not direct Comey to drop the investigation, though he could have; Trump could have pardoned Flynn, which would have ended the investigation; and the investigation proceeded apace — ultimately leading to Flynn’s guilty plea.
There was manifestly no impropriety in the FBI’s briefing of President Obama. As for firing Comey and purportedly threatening to fire Mueller (in fact, Trump has not taken any serious step in the direction of removing the special counsel), these are imagined by Trump detractors into obstruction episodes because they show Trump interfering in the Russia investigation. But the Russia investigation is a counterintelligence investigation. Trump gets to “interfere” in it if he chooses to. Though he grouses about it, he does not seem to have much inclination to interfere in it.
It might be different if the Russia investigation were principally a criminal investigation and Trump were a suspect. But it is not (according to the Justice Department’s order appointing Mueller) and he is not (according to Director Comey, in conjunction with the utter absence of evidence that Trump was involved in any criminal conspiracy, much less a criminal conspiracy involving Russian espionage against the United States).
There was manifestly no impropriety in the FBI’s briefing of President Obama about the state of its counterintelligence investigation of what was alleged to be Russia’s efforts to court Trump. Whether that investigation was catalyzed by good faith fear or a sinister political agenda to spy on the opposition candidate, or both, is a question worth exploring. It does not change the constitutional fact: The FBI’s counterintelligence operations are undertaken for the purpose of informing the president.
Just the same, President Trump cannot obstruct a counterintelligence investigation. Such investigations are not undertaken to build prosecutions but to inform him.
That’s the point.