In the middle of his lengthy news conference Wednesday at the United Nations General Assembly, President Trump made a somewhat new concession about his conduct vis-a-vis the Russia investigation.
Pres. Trump: "There was no collusion, there was no obstruction—unless you call obstruction the fact that I fight back. I do fight back. I really fight back. I mean, if you call that obstruction, that's fine." https://t.co/NkJuIoh4fP pic.twitter.com/7PQ9As7zY4
— ABC News (@ABC) September 26, 2018
The riff was a variation on something Trump has said before. “No Collusion or Obstruction (other than I fight back),” Trump once tweeted. “You fight back. Jon — you fight back,” Trump told ABC News’s Jonathan Karl in January, before mocking Democrats and saying, “Oh, it’s obstruction!”
But for the first time, Trump seemed to acknowledge not just that Democrats claim his fighting back is obstruction, but that it might be valid to consider it as such. Trump made clear that he doesn’t agree, but he appeared to grant that one person’s “fight back” could be another’s obstruction.
There is an argument to be made that this could be significant, at least on the margins. Legally, obstruction of justice requires what’s known as “corrupt intent.” The actions alone are not sufficient; you must also prove that the person taking them intended for the actions to affect the investigation.
Former Justice Department official Harry Litman noted that Trump doesn’t technically have to believe he is obstructing justice to actually do it. Similarly, he could believe he is obstructing without actually doing so.
“But if he understands what he’s doing is considered obstruction — that one man’s “fighting back” is another man’s “obstruction” — that would be relevant for showing knowledge of guilt,” Litman said, “which would tend to rebut his various protestations of innocence."
This hardly means that what Trump said Wednesday is damning or that it will even be consequential in the mind of special counsel Robert S. Mueller III. But Mueller is clearly interested in establishing Trump’s frame of mind surrounding the various actions he has taken — most notably the firing of FBI Director James B. Comey. And Trump’s comments could be read as him understanding that someone like Mueller could interpret his actions as obstruction, and he took them anyway.
At the same time, Trump doesn’t explicitly say, “This might have been obstruction.” He says twice, in fact, that it wasn’t. His comments could also be read as simply acknowledging what his political opponents say about the whole thing, as he has done before.
“I think it would be a real stretch for anyone to include this as evidence of ‘corrupt intent’ or anything like that,” said Harvard Law School professor Mark Tushnet. “On its face, it’s a statement that he is developing a vigorous defense against what he regards as unjustified allegation, and any potential defendant has the right to mount a vigorous defense, and then to tell people that’s what he’s doing.”
Trump has provided many public comments about his actions — some of them seemingly problematic. This one may not rank. But it’s worth noting that Trump just acknowledged that it’s “fine” if people call what he did obstruction.
At some point, we’ll find out whether Mueller does.
