President Trump told the White House counsel in the spring that he wanted to order the Justice Department to prosecute two of his political adversaries: his 2016 challenger, Hillary Clinton, and the former F.B.I. director James B. Comey, according to two people familiar with the conversation.
The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.
The encounter was one of the most blatant examples yet of how Mr. Trump views the typically independent Justice Department as a tool to be wielded against his political enemies. It took on additional significance in recent weeks when Mr. McGahn left the White House and Mr. Trump appointed a relatively inexperienced political loyalist, Matthew G. Whitaker, as the acting attorney general.
It is unclear whether Mr. Trump read Mr. McGahn’s memo or whether he pursued the prosecutions further. But the president has continued to privately discuss the matter, including the possible appointment of a second special counsel to investigate both Mrs. Clinton and Mr. Comey, according to two people who have spoken to Mr. Trump about the issue. He has also repeatedly expressed disappointment in the F.B.I. director, Christopher A. Wray, for failing to more aggressively investigate Mrs. Clinton, calling him weak, one of the people said.
Some are saying this is the final nail in the obstruction of justice case against Trump, because it shows his intent to go after his political enemies including — in the case of Comey — those who might have facts bearing on the Russia investigation against him:
[Y]ou can also bet that this latest New York Times story will be remembered by a House of Representatives controlled by Democrats starting in 2019. It could also be the case that Mueller isn’t asking any of these questions because he already knows the answers.
It is also somewhat amusing to note that if McGahn really warned Trump he could be impeached if he ever ordered the prosecution of Comey or Clinton, it may still be true that the expressed desire to do so can and will be used against Trump. You can bet this Times story would also be mentioned in an impeachment proceeding.
National security lawyer Bradley P. Moss told Law&Crime that “If there ever are Articles of Impeachment (and that is not a foregone conclusion), these types of episodes,” as chronicled by the Times, “will be listed under the category ‘abuse of power.’”
I think all of that is overstated. After all, wanting to prosecute political enemies is different from actually ordering or even urging the DOJ to directly do so. What happened is bad and definitely Trumpian, but the fact remains that McGahn did steer Trump away from the actual act.
In related news, Trump laid out for the special counsel his defense in the investigation into possible ties between his associates and Russia’s election interference, the president’s lawyers said in a statement on Tuesday.
The details of Mr. Trump’s responses were not immediately clear, but his lawyers said that now that he had handed over answers to questions from the special counsel, Robert S. Mueller III, the time had come to end the investigation.
I suspect some of the questions were carefully avoided, particularly if they related to obstruction of justice, which Trump said he would not give any answers on (because executive privilege). If I am right, most of early 2019 will be all about a subpoena battle, and it will be up to the new Supreme Court to decide if Trump must comply.