Special counsel Robert Mueller may be done, but President Donald Trump and his team are still adding to an already hefty record of evidence that could fuel impeachment proceedings or future criminal indictments.
Team Trump’s bellicose tweets and public statements in the last few days are potentially exposing Trump to fresh charges of witness intimidation, obstruction of justice and impeding a congressional investigation — not to mention giving lawmakers more fodder for their presidential probes — according to Democrats and legal experts.
Already, a fusillade of verbal assaults aimed at former White House counsel Don McGahn, a star witness in the Mueller report, have sparked questions about obstruction and witness intimidation as Democrats try to get McGahn to testify.
“This is risky,” said William Jeffress, a prominent Washington defense attorney who represented President Richard Nixon after he left the White House. “I find it surprising because he’s taking these shots at witnesses who gave information to Mueller, and I think he’s got to be careful because there’s an explicit federal statute punishing retaliation against witnesses.”
It’s a lesson some thought Trump would have learned during the Mueller investigation.
Examples litter the special counsel’s 448-page report describing how the president ignored the advice of his lawyers and senior staff by tweeting about the Russia probe and discussing sensitive material with other White House aides and even the FBI director. Mueller made clear that those statements and tweets can be used as evidence to support a criminal charge.
But Trump and his lawyers haven’t hit the mute button.
The president has tweeted about the Russia probe more than 50 times since last Thursday’s release of a redacted version of the Mueller report. And attacks in recent days have turned forcefully against McGahn, who is mentioned more than 500 times in the Mueller report and who delivered damaging testimony about Trump’s attempts to shut down the Russia investigation. Democrats have subpoenaed McGahn to appear next month before the House Judiciary Committee.
The months ahead are also littered with a bevy of opportunities that could entice Trump to offer more barbed opinions — and more material for his investigators. His longtime associate Roger Stone goes on trial this November, tempting Trump to weigh in like he did during Paul Manafort’s trial, when the president posted tweets that were later cited in the Mueller report as evidence of obstruction.
And allies of Manafort and Michael Flynn, Trump’s brief national security adviser who faces prison time for lying to the FBI, are likely to amp up the calls for Trump to issue pardons or commute the sentences for the president’s former aides, each of which Democrats would interpret as additional obstruction evidence.
“A bank robbery is just as much a robbery if everyone sees it, as if nobody sees it,” Rep. Jamie Raskin (D-Md.), a member of the House Judiciary Committee, told POLITICO.
“The president and his team may think that the Mueller report represents the sum total of what’s in play with Congress,” Raskin added. “But from our perspective, the Mueller report just sets the table for an analysis of what’s been taking place.”
On Capitol Hill, Democrats have more leeway than in the courtroom to introduce evidence if they pursue impeachment. For now, the party’s leaders are urging a go-slow approach, fretful that an unsuccessful attempt to remove the president would only help him win re-election in 2020.
But the president’s taunts and missives directed at their investigations — and the potential witnesses they may call — could end up serving a double purpose: goading Democrats into taking the plunge on impeachment and also delivering them evidence to support the case.
“It is unrealistic to expect that the president is going to suddenly change his behavior or suddenly manifest respect for the rule of law,” said Rep. David Cicilline (D-R.I.), another Judiciary Committee member. “The president ought to be accountable for any additional conduct that may constitute an attempt to impede or interfere.”
“We ought to consider not only the full contents of the Mueller report but any subsequent conduct,” Cicilline added.
Trump’s allies say the president feels emboldened by the Mueller probe’s conclusions and doesn’t fear potential legal implications going forward.
“I don’t think he’s afraid of anything,” said Michael Caputo, a longtime Trump associate and former 2016 campaign aide who thinks Trump is indeed engaged in a “briar patch strategy trying to tempt the Democrats into a suicidal venture of impeachment.”
“After enduring the beating he’s endured for two years and watching it crumble into rubble, he sees this as a risky opportunity to do exactly what he’s doing,” Caputo said.
Joe diGenova, an informal Trump legal adviser, also shrugged off the potential legal exposure that comes with the president swinging away at the events depicted in the Mueller report and any of the witnesses whom Democrats are interested in calling.
“The president is doing exactly the right thing,” he told POLITICO, before amplifying Trump’s recent calls for a sweeping investigation into the origins of the Mueller probe. “This narrative is going to be overtaken by the largest scandal in the history of this country, and it ain’t about Trump.”
Legal experts disagree, and many see the president’s continuous chatter as ripe material for federal prosecutors if they decided to take the monumental step of pursuing Trump after he’s out of office.
While Mueller nodded to longstanding Justice Department legal opinions that a sitting president can’t be indicted as he explained his decision not to conclude whether Trump obstructed justice, he also included a footnote near the end of his report highlighting the risks that Trump nonetheless faces in both Congress and the courts.
“A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office,” Mueller wrote. “Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law.”
Essentially, legal experts say, Mueller is signaling that Trump could face criminal charges even if he was impeached.
Any prosecutors who indict Trump after he’s out of office would be working with a five-year statute of limitations on obstruction of justice cases. That means the president could only be exposed for any behavior during his first term if he doesn’t win re-election next November. But anything Trump does from here on out would keep restarting that five-year clock, meaning a second term wouldn’t make him bullet proof.
“I don’t think Trump ought to be relying on the statutes of limitations at the moment,” Jeffress said.
To bring an obstruction case against Trump after leaving office, the Justice Department would need to prove both his intent and knowledge of an existing criminal probe.
Trump is certainly aware of the various tendrils of Mueller’s criminal investigations, which have spawned numerous probes in federal offices in Washington, D.C., New York and Virginia. And as for intent, Mueller’s report lays out granular detail about much of the president’s mindset over the past two years.
“Yeah, you’d be monitoring what he’s saying and doing and what his interactions are with potential witnesses,” said a former prosecutor from the Southern District of New York, the U.S. attorney’s office in Manhattan that continues to examine Trump’s campaign, business and inauguration.
Mueller’s team has also already made the legal argument for using Trump’s tweets as potential evidence for obstruction of justice and witness tampering. He specifically pointed to Trump’s effort to intimidate his former attorney and fixer, Michael Cohen, in a way that would prevent him from testifying on Capitol Hill earlier this year.
“No principle of law excludes public acts from the scope of obstruction statutes,” Mueller wrote.
Mueller’s prosecutors also laid out a template for the pursuit of witness tampering charges. For example, one of the charges against Stone alleges that the longtime GOP operative pressured a witness, radio host Randy Credico, to mislead lawmakers.
A House Intelligence Committee Democratic source argued that the panel is “uniquely positioned” to investigate obstruction of its own probes should the commentary continue.
“It’s clear that the White House plans to obstruct all legitimate congressional oversight, just like Trump obstructed in Mueller’s probe at every turn and witnesses previously obstructed our committee,” the source said.
Despite the risks, Trump has continued to use his preferred social media platform to blow off steam and blast his political opponents and journalists. He has tweeted dozens of times to his nearly 60 million followers his thoughts — or retweeted others’ — since the redacted Mueller report’s public release last week. The posts range from benign criticisms of the news media to encouragements to investigate members of the Obama administration.
But it’s Trump’s veiled references to McGahn — he complained on Twitter about “people that take so-called ‘notes,’” which McGahn memorably told Mueller he had done extensively — that have caught lawyers’ attention.
Rudy Giuliani, the president’s personal attorney, also leveled his own direct charges at McGahn this week, telling the New York Times that he questioned the former White House counsel’s motives and memory.
“This is a cross examination a law student could perform — by the time he’s finished, you would come to the conclusion he’s hopelessly confused,” Giuliani said. “We have no choice to attack because the Democrats say there is impeachable material here.”
In a text message to POLITICO on Tuesday, Giuliani called it “ridiculous” to consider the president’s comments about the Mueller report as new evidence that could harm Trump.
“President’s tweets merely repeat and emphasize points made in report,” he wrote.
McGahn “has two or three versions of the conversation regarding Mueller,” Giuliani added. But Trump and his former personal counsel, John Dowd, “have a different but singular recollection” that runs counter to what McGahn told Mueller, he said.
Caputo, the former Trump campaign aide, brushed off the notion that Trump could face legal liability in his post-White House years.
“To the people who want to take on the president after he’s served out his term, my advice to them is pack a lunch because they’re in for the fight of their lives,” he said. “This kind of analysis is designed to intimidate lesser men and the president is unintimidatable.”
But the president’s critics welcome the Trump team’s double-down approach.
“I’m pleading with Rudy Giuliani. Please stay on television,” said Lanny Davis, the former Bill Clinton White House scandal manager who now represents Trump’s ex-lawyer, Michael Cohen.
Added Julian Epstein, a chief counsel for House Judiciary Committee Democrats during the Clinton impeachment fight, “They’re acting like a scene out of ‘America’s Dumbest Criminals.’ They just keep fueling a fire that has been the bane of their two years in the White House.”
Article originally published on POLITICO Magazine