Trump, Robert Mueller, and Obstruction of Justice

Summary

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The Political Scene | The New Yorker

Episode: Trump, Robert Mueller, and Obstruction of Justice

Date: January 26, 2018
Host: Dorothy Wickenden
Guest: Jeffrey Toobin

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Overview

In this episode, Dorothy Wickenden, executive editor of The New Yorker, is joined by legal analyst and staff writer Jeffrey Toobin to examine the rapidly evolving Russia investigation, specifically focusing on President Trump's attempts to fire Special Counsel Robert Mueller, the legal implications of obstruction of justice, and comparisons to the Watergate scandal. The discussion sheds light on Trump's possible legal vulnerabilities, the current landscape of media coverage, and the shifting public narrative.

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Key Discussion Points & Insights

1. Trump’s Attempt to Fire Mueller and Legal Significance

[01:16–03:48]

• Background: Reports surfaced that President Trump ordered the firing of Special Counsel Robert Mueller in June 2017, one month after firing FBI Director James Comey. White House Counsel Don McGahn reportedly threatened to resign in response.
• Obstruction of Justice Defined: Toobin clarifies that while a president can legally fire the FBI director or even a special counsel, what makes it potentially criminal is the intent behind the act.
• Evidence of Intent: Toobin highlights the pretextual (and seemingly absurd) reasons the White House gave for wanting to fire Mueller, which include an old golf club dispute, alleged conflicts of interest via Mueller’s former law firm, and the fact Mueller was interviewed for the FBI director role. These collectively suggest a “bad intent” on Trump’s part.

“What makes it criminal, if it is criminal, is intent, is state of mind... The fact that the president seemed on the verge of firing Mueller as he had fired Comey based on these entirely pretextual reasons... really calls into question trump's intent in a way that looks pretty bad.”
— Jeffrey Toobin [03:12]

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2. The Challenge of Proving State of Mind

[03:48–04:27]

• Legal Threshold: Wickenden presses on how prosecutors can prove a defendant’s state of mind.
• Toobin’s Analogy: Toobin compares obstruction to fraud, emphasizing the importance of uncovering evidence about what Trump knew and intended at the time.

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3. Shifting Focus: Collusion to Obstruction

[06:01–07:57]

• Initial Investigation: Toobin traces the roots from the 2016 FBI investigation into Trump’s potential Russia ties, noting it began as a counterintelligence inquiry.
• Comey’s Firing as a Turning Point: The firing of FBI Director Comey was pivotal—it directly led to Mueller’s appointment and shifted the focus toward possible obstruction of justice by the president.

“It’s not really accurate to say that this investigation, the Mueller investigation, was mostly based on collusion. It was the firing of Comey that led to the appointment of Mueller.”
— Jeffrey Toobin [07:42]

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4. White House Denials: Truth or Semantics?

[07:57–09:17]

• Past Denials: Ty Cobb, Trump’s lawyer, told Toobin there was “no consideration” of firing Mueller, which Toobin now views with skepticism.
• Word Games: The discussion contemplates whether White House lawyers were purposefully using carefully crafted language to obscure past internal debate or were simply uninformed.

“Were they using extremely careful language, present tense, not past tense, or were they simply lying?... the White House has been misleading at best about the issue of whether the firing of Mueller has been contemplated by the President.”
— Jeffrey Toobin [08:54]

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5. What Mueller Wants to Know from Trump

[09:47–10:52]

• Upcoming Questioning: Mueller is expected to request an interview with Trump, likely focusing on Trump’s motivations (state of mind) rather than facts, which are not in dispute.
• Trump’s Public Strategy: Trump’s public remarks signal a defense based on “fighting back” against what he frames as a conspiracy against him.

“Fight back is obviously the key phrase here, because Trump is now trying to portray his firing of Comey as an attempt to fight back against the conspiracy against him within his own government...”
— Jeffrey Toobin [10:52]

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6. Role of Fox News and the Media Environment

[11:42–12:33]

• Propaganda vs. Reporting: Fox News is described as acting as a “journalistic auxiliary” to the Trump White House, actively supporting the narrative that the investigation is a partisan attack.
• Media Echo Chambers: The hosts discuss how Fox’s amplification enables Trump’s narrative that he’s under siege and “fighting back,” as opposed to obstructing justice.

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7. Watergate Comparisons

[12:33–13:59]

• Brazen Behaviors: Toobin distinguishes Trump’s actions from Nixon’s, calling Trump’s conduct more open and unabashed. The availability of immediate media coverage and a vocal, partisan media environment (not present during Watergate) are identified as key differences.

“The brazenness of the conduct is different. And also the fact that there is a media chorus that will defend the president no matter what. In 1974, you didn’t have Fox News...”
— Jeffrey Toobin [13:14]

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Notable Quotes & Memorable Moments

• On Legal Vulnerability:
  “The real purpose that Trump had in trying to get rid of Mueller was improper. Just trying to relieve the political pressure and legal pressure on him. And that is, I think, important evidence of guilt on the president's part.”
  — Jeffrey Toobin [05:49]

• On Media Influence:
  “Fox News has basically turned into a attack machine against Mueller, and that allows Trump to claim that he is simply fighting back rather than initiating a conflict with the prosecutor who's pursuing it.”
  — Jeffrey Toobin [12:17]

• On the Evolution of the Scandal:
  “We only had to wait for the President to tell Lester Holt the next day that he was firing Comey for improper purposes. The brazenness of the conduct is different.”
  — Jeffrey Toobin [13:05]

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Timestamps for Important Segments

• [01:16] – Introduction and context: Trump’s order to fire Mueller
• [02:34] – Legal significance of Trump's behavior
• [03:48] – Proving intent in court
• [06:26] – Evolution from collusion to obstruction
• [07:57] – White House legal strategy and possible dishonesty
• [09:47] – Mueller’s likely line of questioning for Trump
• [10:52] – Trump’s anticipated defense: “fight back” narrative
• [11:52] – Fox News’ role in shaping public perception
• [12:47] – Watergate comparisons: What’s different now

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Episode Tone

The conversation is analytical, incisive, and direct. Jeffrey Toobin provides clear legal interpretations, while Dorothy Wickenden frames the discussion in accessible, journalistic terms. The tone is urgent yet measured, reflecting the gravity of the political and legal moment.

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Summary

This episode offers a deep dive into the legal jeopardy President Trump faces regarding obstruction of justice and the political and media strategies at play. Toobin and Wickenden explain how the focus of the investigation shifted from collusion to obstruction, underline the legal importance of proving intent, and dissect the administration’s attempts to shape the narrative via selective leaks, denials, and supportive media. The Watergate parallel emerges as both a guide and a contrast—highlighting the brazen, real-time spectacle of the Trump era.

Listeners walk away with a clear understanding of why the Mueller investigation’s focus on obstruction is so precarious for Trump, how media coverage both amplifies and distorts the process, and why this period is so unprecedented in American political history.

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Transcript

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[Dorothy Wickenden]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about Politics. It's Friday, January 26th. Dorothy I'm Dorothy Wickenden, executive editor of the New Yorker. Last June, President Trump ordered the firing of Robert Mueller, the special counsel in charge of the Russia investigation, and Don McGahn, the White House counsel, threatened to resign. Earlier this week, Trump tried to project a sense of confidence about the investigation. When asked by reporters whether he'd meet with Mueller, he responded, I'm looking forward to it, actually.

[Jeffrey Toobin]

You want to here's the story.

[David Remnick]

Just so you understand, there's been no collusion whatsoever. There's no obstruction whatsoever, and I'm looking forward to it.

[Dorothy Wickenden]

At Davos this morning, Trump dismissed the reports that he wanted to fire Mueller as fake news. Jeffrey Toobin joins me to talk about what the latest developments in the Russia investigation indicate about the President's legal vulnerabilities. Hi Jeff.

[Jeffrey Toobin]

Hi, Dorothy.

[Dorothy Wickenden]

The President's order to fire Mueller came a month after he fired his FBI director, James Comey. He had asked Comey for a loyalty pledge and to Go easy on his national security adviser. Michael Flynn, you're a former prosecutor. How significant is this latest news?

[Jeffrey Toobin]

Well, it's really very significant because what you're really talking about here is a question of obstruction of justice. You know, was the president's behavior with regard to Comey firing him. Obstruction of justice. And that's a question that really goes to intent to state of mind. You know, it's completely legal for the President to fire the head of the FBI. Bill Clinton fired the head of the FBI. There is nothing inherently criminal about a president firing the head of the FBI.

[Dorothy Wickenden]

Or the special counsel.

[Jeffrey Toobin]

Or the special counsel. Correct. What makes it criminal, if it is criminal, is intent is state of mind. And the fact that the President seemed on the verge of firing Mueller as he had fired Comey based on these entirely pretextual reasons that are described in the New York Times story, really just adds to the legal problem that Trump has, because it really calls into question Trump's intent in a way that looks pretty bad.

[Dorothy Wickenden]

But when you're bringing a criminal case like this, how do you make the case about someone's state of mind?

[Jeffrey Toobin]

Well, that's always the big challenge. In a fraud case, for example, you know, it's not illegal to sell stock in a company whose value goes down. But if the entrepreneur who sells the stock tells people to lie about the value of it or destroys evidence of what the real value of the company is, that tells you something about the state of mind.

[Dorothy Wickenden]

How much has his case advanced, though, since he admitted last year to Lester Holt that he wanted Comey fired to relieve the pressure on him? So we knew that.

[Jeffrey Toobin]

Well, yes. I mean, you know, what's particularly valuable to Mueller is, is that Trump put forward, according to the Times story, three justifications for firing Mueller that were all preposterous. That he resigned from a golf club years ago in some dispute, which is so completely irrelevant. Second, that he used to be at a law firm that also represented Jared Kushner. If anything, that would have disposed him more favorably towards the president's son in law. So that can't be a question of bias. The third is that Mueller agreed to be interviewed for the FBI job, which he didn't seek out, that they sought him out, and that suggests they thought he was a fair person, notwithstanding whatever this golf dispute was. So, I mean, obviously these three attempts to justify firing Mueller were absurd. And also you have the fact that, that the White house counsel, Don McGahn, threatened to resign because he saw that the purported justifications were such obvious pretext. So all of that suggests that the real purpose that Trump had in trying to get rid of Mueller was improper. Just trying to relieve the political pressure and legal pressure on him. And that is, I think, important evidence of guilt on the president's part.

[Dorothy Wickenden]

Let's go back just a little bit. A few months ago, you wrote for the magazine about Trump's team of lawyers. And at the time, everyone was talking about collusion as Mueller's primary focus. But obstruction of justice was just kind of beginning to be discussed. And I think you mentioned in the piece that this was the real threat to Trump. Could you take us back and explain a little bit how we got from the focus of collusion to where we are now?

[Jeffrey Toobin]

Well, starting way back in 2016, there has been an FBI investigation of the ties between the Trump campaign and Russia. Director Comey talked about that, that the existence of this inquiry in open testimony. But that was, to some extent, just a counterintelligence investigation, not necessarily a criminal investigation, and had been going on for some time. But obviously, this was something that was worrisome to the president. And it was this investigation that led to these bizarre encounters between the president and the FBI director in the first weeks after he was elected, where the president asked for loyalty, where the president asked for Michael Flynn to be given a break. All of that raised worries on the part of Comey, and Comey didn't give the assurances that the president wanted. And that led to the president's decision in May to fire Comey. And it was the firing of Comey that led Rod Rosenstein, the deputy attorney general who was acting in the place of Jeff Sessions, the attorney general who was refused to appoint Robert Mueller as the special counsel. So it's not really accurate to say that this investigation, the Mueller investigation, you know, was mostly based on collusion. It was the firing of Comey that led to the appointment of Mueller.

[Dorothy Wickenden]

For that piece, you talked to Ty Cobb, one of Trump's lawyers. It struck me this morning, reading all about this, that Cobb said in December, there's no consideration of firing the special counsel. And he repeated that. That's a lie. We now know.

[Jeffrey Toobin]

Well, I mean, this depends perhaps in retrospect, on the 10th, that Ty Cobb was using. You know, I have a certain amount of respect for Ty Cobb, and I really hope he was not just lying his ass off to me. But, you know, he said there is no consideration, but he didn't say there has been no consideration of firing Mueller. Kellyanne Conway, one of the president's spokesmen, also has been outspoken on the question if no one is thinking of firing Mueller. So the question is, were these people simply uninformed? They didn't know about this effort? Were they using extremely careful language, present tense, not past tense, or were they simply lying? I don't know the answer to those questions yet, but it is certainly true that the White House has been misleading at best about the issue of whether the firing of Mueller has been contemplated by the president.

[David Remnick]

Right now, we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlemagne, tha God, and so many more. That's all in the New Yorker Radio Hour, wherever you listen to podcasts.

[Dorothy Wickenden]

So in the next few weeks, Mueller is likely to ask to question Trump. What do you think he wants to know very specifically?

[Jeffrey Toobin]

Well, I think these questions of state of mind are very important. I mean, as in many white collar cases, the underlying facts are clearly known. In the insider trading case against Martha Stewart, everybody knew she sold the stock right before the stock went down. And the only issue was what was in her head, what did she know? And the issue with Trump as far as obstruction of justice is what were his motivations for firing Mueller? In his sort of impromptu news conference the other day, he said something that is, I think, a real clue to how he plans on defending himself against an obstruction case.

[David Remnick]

Because here's what we'll say, and everybody says, no collusion. There's no collusion. Now they're saying, oh, well, did he fight back? If you fight back, is that you fight back.

[Jeffrey Toobin]

Oh, it's obstruction. Fight back is obviously the key phrase here, because Trump is now trying to portray his firing of Comey as an attempt to fight back against the conspiracy against him within his own government, that there was a cabal at the FBI. And this has been a big right wing talking point that people were out to get Trump. So Trump had to respond. He had to protect himself. And firing Comey was protecting himself against this cabal. It was anything but improper. It was an exercise of his power to defend his presidency, to exercise his First Amendment rights. And so that is what I think a big part of the defense is going to be.

[Dorothy Wickenden]

And Fox News, of course, is playing right along with this. And it's interesting that the coverage of the Russia investigation there has sort of taken a turn into deep state territory.

[Jeffrey Toobin]

This is, you know, Fox News is basically the journalistic auxiliary to the Trump White House. And, you know, some of it has turned out to be absolutely silly where they're, you know, taking things out of context. This text where the two FBI agents are talking about a secret society and they're obviously joking. The missing text that turn out not to be missing, you know, Fox News has basically turned into a attack machine against Mueller, and that allows Trump to claim that he is simply fighting back rather than initiating a conflict with the prosecutor who's pursuing it.

[Dorothy Wickenden]

The analogies to Nixon are inevitable and ongoing here. And, you know, Trump himself is tweeting about jailing political opponents. What's different about what Trump is doing from what Nixon did?

[Jeffrey Toobin]

Well, it's more brazen. I mean, that's the thing that's so extraordinary is that, you know, we had to wait until the White House tapes came out following a Supreme court fight in 1974 to hear the White House tape where Nixon said, you know, let's tell the FBI that the CIA wants this investigation stopped. We saw that, you know, he was coming up with a fake justification. He was obstructing justice here. We only had to wait for the president to tell Lester Holt the next day that he was firing Comey for improper purposes. The brazenness of the conduct is different. And also the fact that there is a media chorus that will defend the president no matter what. In 1974, you didn't have Fox News, and. And the media worked at a much slower pace. And to the extent there was partisan press, it was magazines like the National Review that couldn't rally support for the President the way Fox can.

[Dorothy Wickenden]

I'm gonna let you go because I know you're writing about this very subject as we speak. Thanks so much.

[Jeffrey Toobin]

Thanks, Dorothy.

[Dorothy Wickenden]

Jeff Toobin is a staff writer, the senior legal analyst for cnn, and the author of the Nine Inside the Secret World of the Supreme Court. This has been the political scene from the New Yorker. You can subscribe to this and other New Yorker podcasts by searching for the New Yorker in your podcast app. And find more political analysis and commentary on new yorker.com Feel free to rate and review the political scene on Apple Podcasts. This podcast is produced by Alex barron for new yorker.com with help from Hannah Melentz. I'm Dorothy Witness.

[Jeffrey Toobin]

Done.

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[Jeffrey Toobin]

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[Jeffrey Toobin]

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[Jeffrey Toobin]

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[Dorothy Wickenden]

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[Jeffrey Toobin]

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