One of the biggest stars of Thursday’s blockbuster Senate Intelligence Committee hearing was a man who wasn’t there: Robert Mueller, a former FBI director who is now serving as special counsel overseeing investigations into the Trump campaign’s potential dealings with Russian officials.
James Comey testified that he leaked memos of his conversations with President Donald Trump specifically “because I thought that might prompt the appointment of a special counsel.” Comey said he turned over all of those memos to Mueller once he was appointed. The memos infamously outline how Trump pressured Comey with demands for loyalty and a request to drop an investigation into former national-security adviser Michael Flynn.
Committee chair Richard Burr asked Comey if he believed those attempts amounted to a presidential obstruction of justice, and Comey replied, “I’m sure the special counsel will work towards—to try and understand what the intention was there, and whether that’s an offense.”
Comey made it clear, without using the words “obstruction of justice,” that he personally believes it occurred. He said he felt Trump was ordering him to drop investigations, not merely expressing a “hope,” and that he was fired because of the Russia inquiry. When Senator John Cornyn asked Comey why he didn’t seek a special counsel for the investigation into Hillary Clinton’s e-mail server, Comey said he “decided that would be an unfair thing to do because I knew there was no case there…. Calling for the appointment of special counsel would be brutally unfair because it would send the message there’s something here.” Given that Comey had just proclaimed he wanted a special counsel to look into his interactions with Trump, you don’t need a legal-math whiz to put two and two together.
(Cornyn’s inquiry was one of many self-inflicted wounds by Republican senators, who broke a cardinal rule of cross-examination: Don’t ask a question if you don’t know the answer. Senator Tom Cotton took the cookie when he asked Comey, “Do you think Donald Trump colluded with Russia?” and Comey answered, “That’s a question I don’t think I should answer in an open setting.”)
In any case, the momentum of this scandal has clearly shifted towards Mueller. It is more likely than not that he is investigating the president of the United States. If Mueller is indeed is looking into whether Trump—or any members of his administration—obstructed justice in the process of firing Comey, what powers does Mueller have to make this inquiry, and what can he do with the results?
The answers are complicated, but will be critical to understand over the coming months. The short answer is that Mueller has extraordinary powers to investigate, subpoena, and prosecute wrongdoing—but there are still several ways Trump can shut Mueller down.