Editor's Note: (Caroline Polisi is a federal and white collar criminal defense attorney in New York. She frequently appears on CNN as a legal analyst and is an anchor at the Law & Crime network, providing live legal analysis on high-profile court cases. The views expressed in this commentary are her own.)
(CNN) "You fight back, oh, it's obstruction," President Donald Trump has told the press about his attempts to push back against what he views as a meritless investigation into whether his presidential campaign had inappropriate contacts with Russians. Now amid reports that Trump's legal team is actively negotiating the terms of an in-person interview with special counsel Robert Mueller on the Russia probe comes the latest revelation that he allegedly ordered White House counsel Don McGahn to fire Mueller in June. The President has denied the reports.
While it is tempting to view this recent development as slam-dunk evidence of obstruction of justice, it cannot be analyzed in a vacuum. McGahn, who had been seen as a Trump loyalist, ultimately rebuffed the request to fire Mueller. And while perhaps nothing better illustrates the President's fundamental misunderstanding of the role of our executive branch than his conflation of obstruction with fighting back, he has displayed a dizzying and at times remarkable pattern of obstructionist behavior while in office.
Yet there is simply no way of measuring the practical merits of an obstruction of justice case (and yes, the President can obstruct justice, no matter what John Dowd, Trump's private lawyer, says) without getting to the question of whether Mueller has uncovered any evidence of underlying criminal coordination in the form of, say, a conspiracy to violate campaign finance or anti-hacking laws between team Trump and the Russians.
Could Mueller conclude that Trump obstructed justice? From a purely legal standpoint, based just on the facts as we know them today, the answer is yes. Highlights of an obstruction case against Trump include his asking then-FBI Director James Comey for a loyalty pledge and urging him to drop his investigation into former national security adviser Michael Flynn, plus his subsequent firing of Comey, citing the now infamous memo written by Deputy Attorney General Rod Rosenstein. The contents of that memo are now generally acknowledged to have been wildly a pretext since the President admitted the actual reason he fired Comey was, quite simply, "this Russia thing."
But the answer is yes only in theory. Practically speaking, without evidence of an underlying crime, any allegations of obstruction of justice will likely fall flat, for two reasons:
First, obstruction of justice in this case likely would not be charged as a single act. Instead, Mueller will likely analyze the totality of circumstances described above in conjunction with any evidence of Trump's "corrupt intent." It is this criminal intent that is by far the most important -- and the most difficult -- element for prosecutors to prove in any criminal case. Without an underlying crime ("collusion" as we've taken to calling it in the press, even though there is no crime labeled as such), of which Trump was aware, prosecutors will have a much more difficult time proving the intent element of any obstruction charge.
Second, while there is some ambiguity regarding whether a sitting president can be criminally indicted, legal scholars and analysts generally agree that the Office of Legal Counsel's 2000 memo reaffirming that a president is immune from criminal prosecution while in office still governs the Department of Justice. Therefore, the proper course of conduct, if Mueller were to find evidence of a crime implicating the President, would be for him to refer the matter to the House of Representatives. It would then decide whether or not to proceed in drafting articles of impeachment. Politically speaking, the House is less likely to impeach a president for obstruction if that obstruction pertained to an investigation into a nonexistent (or unproven) crime.
On the other hand, if Mueller does find evidence of a criminal conspiracy between the Trump campaign and Russians and he finds evidence that Trump knew about the illicit behavior, then the obstruction case becomes much, much stronger. Until we know more about what, if any, evidence Mueller has regarding Trump's knowledge of illicit coordination between his team and the Russians, any analysis of the obstruction of justice case is purely academic, and, ultimately, nonproductive.