Below is my column in USA Today on one of the lines of inquiry by Special Counsel Robert Mueller: the stated desire of President Donald Trump to fire Attorney General Jeff Sessions and his poor public criticism of the Attorney General for recusing. That inquiry has become more damaging with recent disclosures of an effort by Trump to convince or coerce Sessions to reverse his decision to recuse himself. Despite renewed calls for obstruction charges or impeachment counts, there is a clear defense emerging for Trump based on recent comments. Indeed, it may be the only viable defense that accepts these facts while rejecting the claim of criminal obstruction (other than the untested claim that Trump is effectively immune from such a charge).
Here is the column:
That latest report of special counsel Robert Mueller’s expanding investigation into obstruction of justice by President Trump follows a disturbing pattern of self-inflicted wounds. Trump allegedly called Attorney General Jeff Sessions to Mar-a-Lago in March 2017 to berate him for recusing himself from the Russian investigation and to demand that he “unrecuse” himself, as his lawyer Rudy Giuliani put it. Such a request would be as improper ethically as it would be grammatically.
What is most striking, however, is the Trump camp’s response to the story and what it shows about the most viable defense to any case on alleged obstruction against Donald Trump: a type of justified self-defense.
Giuliani surprisingly did not deny the account but insisted, “ ‘Unrecuse’ doesn’t say, ‘Bury the investigation.’ It says on the face of it: ‘Take responsibility for it and handle it correctly.’ ”
For many, this was hardly a complete defense, and indeed it was not. The desire to put a “loyalist” at the head of an investigation is on its face troubling, and it is far more serious to seek such an advantage by demanding that a lawyer, let alone the attorney general, reverse an ethical decision made by himself and career Justice officials.
The challenge for Trump’s counsel is to develop a defense where such self-defeating acts become acts of self-defense. The defense would go something like this: Trump was convinced that the Justice Department was leading an effort to obstruct his administration or even engineer his removal as president. Trump had long denounced the Justice Department as a hostile agency. In addition to calling for an investigation into bias at the Justice Department, Trump sought to have his own appointees in key positions to guarantee fairness, including Sessions.
Trump can claim that, while his actions may be viewed as unorthodox or inappropriate, they were motivated by a real fear of a rigged investigation. Accordingly, he wanted his own attorney general to guarantee a fair investigation and not just leave him to the designs and discretion of a hostile agency.
This type of justified self-defense claim fits the long narrative of Trump. Starting in 2016, Trump spoke of an effort to rig the campaign and later to use the Justice Department to undermine his administration. It does appear that there was surveillance of Trump campaign officials, and the use of at least one informant to target advisers. Reinforcing this concern was the conduct of high-ranking Justice officials.
As soon as Trump got into office, Acting Attorney General Sally Yates took the unprecedented action of ordering the entire department not to defend his travel banpolicy. Yates was rightfully fired by Trump for her unjustified order.
Then there was the disclosure that a dossier paid for by Hillary Clinton’s campaign was actually used as the basis for surveillance of Trump associates.
And there are those embarrassing text messages and demotions of Justice Department officials after they showed open hostility toward Trump and his election.
That might seem like a less than compelling defense, particularly when an independent investigation was started and would be overseen by his own appointee, Deputy Attorney General Rod Rosenstein. Indeed, it is the type of defense better suited not for acquittal but a hung jury. It allows a juror to agree on the occurrence of the acts but still vote to acquit on the intent behind the acts. The point is not to prove a deep state conspiracy but to show a reasonable fear that an investigation by this agency would not be fair.
It is a defense that is familiar to criminal defense attorneys. It’s most extreme, and most infamous, use occurred in the trial of Larry Davis, a well-known African-American figure who was suspected of a variety of serious crimes. In 1986, seven officers raided Davis’ apartment. Davis fired on them as they burst into the apartment late at night and wounded six. All of the officers were white except for one Hispanic officer. Davis’ defense was simple: The only reason white police officers come at night to the apartment of a black leader is to shoot him.
Defense counsel in the Davis case asked the jury of 10 African Americans and two Hispanics to use their experience and common sense in weighing the argument. Those officers, they insisted, where there to kill him, not arrest him. To the surprise of many, the defense worked. The jury announced “not guilty” 15 times and only convicted Davis on gun charges.
Certainly, Mar-a-Lago is a world away from Davis’ Bronx apartment. However, the basis for the defense is strikingly similar. The president is arguing that the only reason the Justice Department was investigating him was to frame to him, and he has long described himself as a “counterpuncher.”
It is a defense that could work. Where some see the president acting to obstruct or derail the investigation, others see the Justice Department as acting to obstruct or derail the president. Moreover, even if the president is wrong about his deep-state conspiracy theories, he can claim that his motivation was not just clear but expressly stated.
The Davis defense works even if jurors do not agree with assumptions of the defendant. In both torts and criminal law, there are defenses that can be based on reasonable mistake. The point is not that the defendant was right in his assumptions, but that there was a reasonable basis to believe that he had to act.
The conspicuous omission of a denial from Giuliani could reflect a decision that Trump’s defense is quickly being reduced to a fight over motivations rather than means. To convict Trump of obstruction of justice, Mueller must prove that the demand for “unrecusal” was not just unseemly but unlawful.
That depends on why Trump did it.
Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.