Published by The Lawfare Institute
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As Donald Trump battles in court to stall the process of the Justice Department’s Mar-a-Lago investigation, the press has continued to uncover damaging new information about Trump’s conduct regarding government documents held improperly at the former president’s Florida resort. Recently, the Washington Post and the New York Times reported that Trump directed one of his lawyers in early 2022 to inform the National Archives that all documents requested by the Archives had been returned from Mar-a-Lago. Such a statement, of course, would have been false: Months later, the FBI would seize over 20 boxes of material remaining at the estate. And, in fact, the lawyer, Alex Cannon, reportedly refused to convey Trump’s message to the Archives because he was not sure if it was true.
For those of us who have, for our sins, closely monitored the various investigations into the former president, this anecdote sounds an awful lot like another instance in which Trump tried and failed to persuade one of his lawyers to provide a falsely exonerating statement about his conduct. According to the Mueller report, in January 2018, Trump ordered White House Counsel Don McGahn to draft a letter “for our records” denying accurate press reports that Trump had previously ordered McGahn to fire Special Counsel Robert Mueller. McGahn refused—because, as with Cannon four years later, the statement would have been untrue.
The echo of the McGahn incident in the Post’s and the Times’s recent reporting is more than just a reminder that Trump’s relationship with his lawyers has always been strained. Both of these incidents represent potential instances of criminal obstruction of justice by Trump—or, at the very least, help flesh out a broader pattern of obstructive conduct on Trump’s part. The Mueller report’s lengthy obstruction analysis—including the McGahn anecdote—sketches a damning portrait of a man fundamentally incapable of holding himself back from interfering in investigations of his own conduct. And now, in his post-presidential life, Trump shows no sign of having developed any additional self-restraint. In both the Mar-a-Lago investigation and the Jan. 6 committee’s probe into the 2021 insurrection, Trump has continued to hamstring those seeking to hold him accountable.
But there’s an important difference between Trump’s behavior during the Mueller investigation and his recent conduct. As Trump tells us, when you’re a star, you can do anything. And there is some truth to the notion that you can get away with almost anything when you’re the president. When you’re a former president, though, the rules are less favorable.
The latest reporting from the Post and the Times is not good news for Trump when it comes to his potential legal exposure. As the Post puts it, “[a]ttempts to get Trump’s representatives to falsely state he had no presidential records in his possession could serve as evidence that he was intentionally and knowingly withholding documents”—which could speak directly to Trump’s culpability under the three separate criminal statutes listed in the Mar-a-Lago search warrant. That includes 18 U.S.C. § 1519, an obstruction statute related to the alteration, destruction, or concealing of records carried out “with the intent to impede, obstruct, or influence” an investigation.
This wouldn’t be the last time that the Trump team proved squirrely about whether or not all the materials had been handed back to the Archives. In June 2022, after the FBI collected a handful of classified documents from Mar-a-Lago, a lawyer on Trump’s team signed a document attesting to the Justice Department that no additional government documents were left in Florida. This obviously turned out to be false, and the government later indicated that it was investigating potential obstruction of its investigation under § 1519.
The new reporting from the Post and the Times, though, adds the additional element that Trump personally asked Cannon to tell the Archives all documents had been returned. The Post also reports that Trump did so after himself “pack[ing] the boxes that were returned in January.” From the government’s filings, the scope of the former president’s direct involvement with the documents held at Mar-a-Lago was unclear. But now it seems that Trump himself was personally responsible for at least some of the decision-making around the handling of the documents.
News of such conduct by a former president obviously would have been noteworthy under any circumstances. But this isn’t even the only recent incident of potential obstruction of justice by Trump and those in his orbit. During its summer 2022 hearings, the Jan. 6 committee announced that the former president and his advisers had reached out to witnesses providing information to Congress. One witness, later reported to be White House aide Cassidy Hutchinson, received phone calls telling her that—in her words—“as long as I continue to be a team player … I’m protecting who I need to protect, you know, I’ll continue to stay in good graces in Trump World. And they have reminded me a couple of times that Trump does read transcripts” of interviews before the committee. In another instance, Hutchinson was told that an individual—unnamed by the committee, but identified by Politico as former White House Chief of Staff Mark Meadows, Hutchinson’s one-time boss—“knows you’re loyal, and you’re going to do the right thing when you go in for your deposition.”
After a subsequent hearing, committee Vice Chair Liz Cheney (R-Wyo.) announced, “President Trump tried to call a witness in our investigation. … That person declined to answer or respond to President Trump’s call and instead alerted their lawyer to the call.” The Post later reported that Trump had also called other witnesses “throughout the Jan. 6 investigation.”
Just as Trump’s instructions to Cannon echoed his interactions with Don McGahn, the Jan. 6 committee’s descriptions of these phone calls resemble other incidents of potential obstruction of justice documented in the Mueller report. The special counsel described a pattern where Trump’s lawyers would reach out to potentially friendly witnesses in the Russia investigation, promising that they would be “taken care of”; Trump, meanwhile, would sometimes make positive comments about people in question to reporters or on Twitter. Then, if the witnesses began to cooperate with Mueller after all, Trump would barrage them with hostile public statements.
Before he started cooperating with the special counsel’s office, Trump’s fixer Michael Cohen received an email telling him, “You are ‘loved’ …. Sleep well tonight, you have friends in high places.” At another point, Trump’s personal counsel John Dowd left a voicemail for the lawyer of Michael Flynn, Trump’s former national security adviser, after Flynn began his cooperation with Mueller:
I understand your situation, but let me see if I can’t state it in starker terms. ... [I]t wouldn’t surprise me if you’ve gone on to make a deal with ... the government. ... [I]f ... there’s information that implicates the President, then we’ve got a national security issue, ... so, you know, ... we need some kind of heads up. Um, just for the sake of protecting all our interests if we can. ... [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains[.]
This sounds a great deal like the calls received by Hutchinson encouraging her to be a “team player.”
All this adds up to an unbroken habit on Trump’s part of trying to hamstring various inconvenient investigations—what another former national security adviser of his, John Bolton, memorably described as “obstruction of justice as a way of life.” But something that looks unflattering may still be a long way away from an act that can be established beyond a reasonable doubt as criminal under the relevant obstruction statutes.
Consider the phone call to a Jan. 6 committee witness: In the absence of a voicemail or any indication why Trump made the call, it’s difficult to pin this down definitively as obstruction. Perhaps Trump dialed the phone number by accident. Perhaps he called to wish the witness a happy birthday.
Here, Meadows’s messages to Hutchinson provide more of a text for investigators to work from. Mueller analyzed similar communications from Trump’s team as potential acts of obstruction, writing in Cohen’s case that “the evidence … could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” And indeed, after Hutchinson’s testimony, Trump posted at length on his social media website Truth Social calling Hutchinson a liar and seeking to undermine her own credibility.
Of course, when it comes to Trump’s personal culpability on the Hutchinson matter, there’s still the question of whether the former president knew what his erstwhile chief of staff was up to. Likewise, analyzing the Flynn voicemail in the Mueller report, the special counsel was circumspect as to whether the call cleared the bar for corrupt intent, writing that the office was unable to determine Trump’s involvement in the interaction due to attorney-client privilege. In this respect, perhaps the most striking thing about the failed phone call to a Jan. 6 witness is the fact that Trump himself reportedly picked up the phone, rather than going through an intermediary as he appears to have done in the incidents documented in the Mueller report. Former Mueller prosecutor Andrew Weissmann told the Post that he was struck by the “foolhardiness” of Trump’s decision to reach out directly, wondering whether the “circle of people willing to do his bidding may be narrowing.”
What about Trump’s directives to McGahn and then Cannon concerning the potential falsification of records? In the McGahn instance, Mueller seems confident—or as confident as he gets—that Trump intentionally “asked McGahn to repudiate facts that McGahn had repeatedly said were accurate” and did so “in order to deflect or prevent further scrutiny of the President’s conduct.” But an Office of Legal Counsel (OLC) memo prepared for Attorney General William Barr later concluded that “there is insufficient evidence to conclude beyond a reasonable doubt that the President sought to induce McGahn to lie,” pointing to indications that Trump genuinely believed that the news stories he was asking McGahn to repudiate were false.
OLC’s analysis here is not, in my view, convincing. But the office’s analysis is a reminder of how difficult it can be to prove the requisite corrupt state of mind under the obstruction statutes. When it comes to Trump’s instructions to Cannon, the Justice Department would need to show that the former president didn’t simply believe that he really had given all the documents back to the National Archives. Notable here is the Post’s reporting that, before he made his request to Cannon, Trump personally packed the boxes initially returned to the Archives and incorrectly informed aides that the remaining documents at Mar-a-Lago “were ‘newspaper clippings’ and not relevant to the archives.” (Given that the FBI would later remove 27 boxes of documents from Mar-a-Lago, plus additional material, that would be a great many newspaper clippings indeed.) This speaks to a level of personal involvement by the former president that suggests he might really have known what was and wasn’t in the boxes in question.
Overall, Trump’s pattern of potentially obstructive behavior has remained remarkably consistent from the Mueller investigation through today. The major difference between Trump’s actions as documented in the Mueller report and his recent conduct regarding the Jan. 6 and Mar-a-Lago investigations doesn’t actually have anything to do with the nature of the conduct itself. Rather, it’s the fact that Trump is no longer the president.
Mueller’s work was unavoidably shaped by the constitutional complications inherent in investigating the chief executive. Many—though not all—of the instances of possibly obstructive conduct identified by Mueller involved Trump’s exercise of presidential authority under Article II of the Constitution, which raises a number of thorny legal questions. The thorniest such questions arise when the conduct in question would, in another context, have been a valid exercise of presidential power: for example, firing the FBI director. But the difficulties extend more broadly. Memos from OLC suggest the Justice Department may take the view that the obstruction statutes, as written, do not apply to presidential conduct if there’s even the faintest connection to any presidential function. In a 1995 memo, then-OLC head Walter Dellinger wrote that “general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.”
As Jack Goldsmith noted after the release of the Mueller report, this phrasing of “arguably limit” is extraordinarily broad and suggests that OLC’s analysis might substantially cramp the Justice Department’s ability to prosecute conduct by the president that does not obviously fall within his Article II duties. Instances like Trump’s demands to McGahn or his messages of encouragement to Cohen and Flynn, for example, are not exactly in the dead center of presidential authority—there is no clause in Article II granting the president the right to falsify evidence or engage in witness tampering if it is convenient to him. Yet OLC’s analysis is expansive enough that one could see how it could at least raise questions within the Justice Department about applying the obstruction statutes to such actions. This isn’t to say that OLC is correct on the matter, or that this analysis would necessarily prohibit applying the statutes in all circumstances. (Goldsmith argues that Trump’s efforts to influence Flynn, for example, would still be covered by the obstruction statutes even under OLC’s reading of the clear statement rule.) But it’s an additional hoop for the Justice Department to jump through, and not necessarily an easy one for a cautious prosecutor to clear.
Now that Trump is no longer the president, any analysis of potential obstruction of justice no longer has to jump through such hoops. There are no Article II concerns conceivably raised by the FBI investigation of documents held at Mar-a-Lago. Trump has no authority to propose to the government, as the Times recently reported he did, that he hand over the documents held improperly at his estate in exchange for the Archives providing him with another set of sensitive government documents concerning the Russia investigation. Any potential prosecution of Trump for his actions around Jan. 6 would run into the now-familiar problem of whether Trump’s efforts to overturn the 2020 election and block the certification of the electoral vote were expressions of the president’s constitutional authority. But the apparent efforts of Trump and those around him to potentially intimidate witnesses from testifying before the Jan. 6 committee raises no such concerns.
Since reluctantly leaving office, Trump has done his best to hold on to the remnants of presidential power available to him as a former chief executive. He’s tried—unsuccessfully—to invoke executive privilege to block the Biden administration’s transfer of documents to the Jan. 6 committee and suggested that he might somehow be able to assert executive privilege against the executive branch itself in the Mar-a-Lago investigation. When it comes to federal investigations, though, the protections he once enjoyed fell away at noon on Jan. 20, 2021.
Any one instance of potentially obstructive behavior may not rise to the level of a prosecutable offense. In some cases, such as the missed phone call to the Jan. 6 witness, it almost certainly doesn’t. But the fact that Trump continues to engage in such behavior is itself telling. Former White House Counsel Bob Bauer argued on Lawfare in 2017 that Trump’s ongoing habit of berating and stymying investigators paints “a certain picture of himself, which is neither pretty nor without consequence for his legal position. This self-portrait can be counted on to color unfavorably any assessment of his motives when more formal inquiries into his behavior are considered or take place.” In other words, as Benjamin Wittes and I wrote during the Mueller investigation, “while any one action by Trump might not meet the stringent standards required for a criminal obstruction charge, the sum of those actions viewed as an overall pattern can tell a different story.”
Bauer was writing in May 2017, when the conduct in question had been going on for only the few months that Trump had been in office. Now, it stretches across a period of years. Trump’s efforts to block the Mueller investigation are, from a prosecutor’s perspective, separate from his potential obstruction in the Mar-a-Lago case, but they sketch a striking portrait of someone who either is incapable of changing his behavior or sees no need to do so. To put it another way, he has not, as Sen. Susan Collins (R-Maine) put it, “learned” from his experience of being investigated in the past. Or if he has, what he’s learned is that he can continue meddling without any consequence. Whether that lesson remains true in his post-presidential life remains to be seen.