Three reasons Mueller may not charge Trump with obstruction

Washington is in another frenzy over the disclosure that President TrumpDonald John TrumpDave Chappelle: Trump 'speaking to a very small choir' in an 'eclectic' Three reasons Mueller may not charge Trump with obstruction Alabama grocery store says it will not sell Pepsi products with NFL logo to oppose kneeling protests MORE'S lawyers are prepared to answer the questions from special counsel Robert MuellerRobert Swan MuellerStep: US should applaud the choice of Mueller to lead. Observers are speculating on the meaning of this move, as anticipation grows for the investigation's culmination.

If the suspense is killing you, a bigger surprise may await.

The most significant aspect of this story may not have been: questions about obstruction. Mueller is asking about Russian collusion, rather than the driving force behind his appointment FBI Director James ComeyJames Brien ComeyThree reasons Mueller may not charge Trump with obstruction Clinton's security clearance. Indeed, there is a serious obstruction charge in the making – the focus of so much media attention since it was ignored on May 10, 2017.

Director Alfred Hitchcock once again chastised fans suspense with surprise. Hitchcock described a scene with two people "having a very innocent cat" with a bomb under their table – and then it explodes. That is surprise; as Hitchcock put it, "Nothing happens, and then all of a sudden, 'Boom!'"

Now take the same scene and allow it to go ahead with a bomb set to go with a clock on the wall. Hitchcock Explained: "The public is aware of the bomb is going to explode. … In these conditions, the same innocuous conversation becomes fascinating because of the public … "You should not be talking about such trivial matters. There's a bomb you're about to explode! "" The suspense comes from the waiting.

Mueller's obstruction investigation could well prove to be the suspense of the bomb that never goes off. Indeed, there is ample reason to question whether Mueller ever seriously believed obstruction had the capability of exploding into a criminal charge.

For two years, the public has watched this figurative bomb beneath the table at the Oval Office, waiting (and, in some cases, openly praying) for it to explode. Their wait has been fueled by commentators who scream "Boom!" With every disclosure, great or small. Former Watergate prosecutor Nick Akerman and Attorney General Eric Holder have categorized Trump committed obstruction of justice. Others have cited his tweets as a compelling basis for an obstruction charge. University of Notre Dame professor Jimmy Gurulé even suggests it was obstruction for Trump to extend his "appreciation and greetings" to Mueller's special counsel. Boom.

The claim of an impending explosion contrasts sharply with the actual unfolding scene in Washington. Consider just three indicators that is more suspenseful than this Hitchcockian scene.

This is not how you build an "O" bomb

I have previously argued, none of the allegations raised above criminal law or prior opinions defining that crime. There are a variety of obstruction crimes that most have no applicability to this controversy. There is Section 18 USC 1503 which broadly defines the crime of "corruptly" endeavoring to influence, obstruct or impede the due administration of justice. "This" omnibus "provision, however, is most properly used for judicial proceedings as , and the Supreme Court has narrowly construed the provision.

There is also 18 USC 1512 (c), which makes it more likely to be corrupted or otherwise obstructed, or to the contrary. Andrew Weissmann, Chairman of the Board of the United States, was responsible for overruling the Supreme Court's decision. Arthur Andersen case in 2005.

These and other provisions simply do not make up for a compelling case against Trump. While Trump has shown to be breathtakingly poor, it is not obstructionist. Moreover, Trump had independent grounds to fire Comey, including many of the reasons cited by Deputy Attorney General Rod RosensteinRod Jay RosensteinThree reasons Mueller may not charge Trump with obstruction Rod Rosenstein must recuse himself Trump: Nunes should receive Medal of Honor MORE in his scathing criticism of Comey in 2017. Put simply, this is not what an "O" bomb looks like.

The wrong people are at the table

Another indicator is that, if Mueller were seriously investigating obstruction, Rosenstein should not be sitting at the table. For that matter, neither should Mueller. Mueller interviewed for Comey 's job after he was fired – making him a witness. Rosenstein has had a more direct and controversial history of conflict. Indeed, Rosenstein recognized that "serious" allegations of a conflict exist but, inappropriately, he left the matter to Mueller: "Director Mueller ought to review and make a determination of whether or not he believes it is within the scope of his investigation. "

Rosenstein's position leads to a rather intriguing explanation for his continuation as Mueller's superior. What if Mueller agreed that this is not a credible obstruction case? In that case, there would be no "O" bomb under the table, or any problem in Rosenstein sitting at the table. If there is no obstruction, there is no real conflict for Rosenstein.

The conversation is not about the bomb under table

That does not make us obsessing about his written questions. It is a curious thing when there is an "O" bomb in plain sight but no one in the room seems to be focusing on it. Trump's testimony is far more important than obstruction than collusion; His intent would be vital to making even a marginal obstruction case. However, Mueller is asking about obstruction in these questions.

It certainly is possible that Mueller wants an interview on obstruction or nothing at all. In that case, the "Boom!" Comes with a subpoena to the president to sit down for an interview. Existing law would favor Mueller in such an interview, but he did not ask it. He has reportedly been questioning about obstruction but, if he was serious about an actual charge, he would be asking answers from Trump. Otherwise, obstruction issues would become part of the narrative in a report.

For all the hype, the Mueller investigation has not been surprisingly surprising. Indeed, any surprises are largely contrived with common plea agreements and charges in federal investigations. As I wrote after Mueller's appointment, it was more likely that we would see the charges of false statements under 18 U.S.C. 1001 as opposed to obstruction or collusion charges. Trump associates; the remaining charges against people Paul ManafortPaul John ManafortThree reasons Mueller may not charge Trump with obstruction Judge call Manafort plea deal 'highly unusual' Calif. man ensnared in Mueller probe sentenced to 6 months in prison MORE are entirely unrelated to the campaign. Mueller has had a variety of issues, but these filings particularly do not involve Trump and actually exonerate Trump campaign officials who "unwittingly" had contact with these individuals.

Does this mean Mueller's investigation is a bomb? Of course not; he has done a thorough job of identifying and inducing Russian agents behind the effort to interfere with our election. He may also have other criminal acts to allege.

If, however, you are waiting for the "O" explosion, you may end up with a suspense of a Hitchcockian bomb that fails to go off.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.