Why is escalating his attacks against special counsel counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE , Attorney General , the Department of Justice, the FBI and the free press to a fever pitch in recent days?
The reason is that the odds are very high that Mueller will offer a declarative public statement before the midterm elections, and very likely before Labor Day, that the president is guilty of obstruction of justice.
The Mueller declaration of obstruction of justice could be issued in the form of a letter to Congress and may or may not ultimately be issued in the form of an indictment if he believes that the Trump situation creates extraordinary circumstances that warrant his seeking approval for a formal indictment.
It is impossible to know exactly what Mueller will do. We do not know the evidence he has that has not yet been made public. We do not know his private thinking on great matters of state and law that will govern his actions.
In April, there were public reports that Mueller would ultimately release his findings in two stages, the first being obstruction of justice, which could be released in whatever form it takes this summer.
When public reports indicated that Mueller is looking at Trump tweets, among other factors, in the obstruction investigation, some of his handful of legal defenders suggested that Trump tweets are not relevant evidence of obstruction. They are wrong, though the tweets are far from the most important evidence.
Consider the obstruction of justice provisions in the articles of impeachment against Richard Nixon that were passed by the House Judiciary Committee before Nixon resigned. Article 1, Section 8 of the articles of impeachment included this:
“making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct.”
In other words, repeatedly making false statements intended to deceive the public about matters under investigation constitute acts in furtherance of obstruction of justice in violation of American law.
Now consider this. Literally in real time, Trump is virtually at war over facts with leading members of his Cabinet about whether Russia has attacked American elections in the 2016 campaign and continues to attack American elections in the 2018 midterms.
On Thursday, leading members of his administration joined together in an extraordinary public session warning the nation about the continuing Russian attack against our elections. His national security adviser, director of National Intelligence, FBI director and secretary of Homeland Security stood united before the nation, warning of the continuing Russian attack in clear and powerful terms.
Trump could have joined them in person to offer his support. He did not. Instead, only hours later, he publicly claimed, again, that the Russia investigation was a hoax and that his recent meeting with Russian strongman Vladimir Putin was a huge success.
If charges that Trump obstructed justice by making false statements are considered in court or congressional hearings, it would be powerful testimony for his cabinet members to be called to testify about whether Trump’s statements that the Russia investigations are a hoax are true or false.
Similarly, Trump’s fevered and escalating attacks against the free press, which even his daughter Ivanka had the good sense to rebut, provide more powerful and compelling evidence of intent to mislead the public about matters under intense investigation.
While Trump is in dramatic conflict with Cabinet members who warn about the Russian attack, which he falsely claims is a hoax, he attacks the free press for reporting about the Russian attack, which he falsely claims is fake news.
Mueller could argue that Trump is seeking to execute the first televised obstruction of justice, in plain view before the nation every day.
With a high probability that the obstruction issue reaches a crescendo before the midterm elections, there is now a growing likelihood that an anti-Trump wave will doom Republicans to a disastrous defeat in November.
In Texas, Rep. Beto O’Rourke (D-Texas) has surged to within a few points of defeating Sen. (R-Texas). In Tennessee, former Democratic Gov. Phil Bredesen has a strong chance of winning the election to replace Sen. (R-Tenn.). Democratic Senate candidates have a strong chance to take Republican Senate seats in Arizona and Nevada.
It is now probable that Democrats regain control of the House of Representatives with a real possibility that Democrats win a larger than expected majority. For Republicans, it is the worst possible time for the coming obstruction of justice bombshell to explode.
It is political suicide for Republicans when the president escalates his attacks against the free press to such extreme levels that even his daughter distances herself from these attacks. His attacks against Mueller have reached such extreme levels that he puts the fear of God into Republicans running in 2018.
Brent Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the U.S. House of Representatives. He holds an LLM in international financial law from the London School of Economics.