Will the investigation of Trump backfire politically?

While I have argued that the investigation might succeed in a legal sense, it could backfire in a larger political sense. Imagine the following scenario. Mueller finds that some of Trump’s aides engaged in hanky-panky—talking to the Russians when they shouldn’t have, profiting from dubious financial transactions involving the same. But Trump himself did not call up Putin and offer to lift sanctions in exchange for help defeating Hillary Clinton in the election. The extent to which Trump benefited, financially or politically, from his aides’ illegal or dubious behavior is hopelessly ambiguous. A few of the aides go to jail or pay fines or walk the plank of community service.

Then Trump would declare victory, and politically he would be right. The contrast between the vast amount of media attention and public expense, and the smallness of the results, will give an impression of bureaucratic overreach. It will feed all kinds of narratives about the impotent fury of the deep state, the hostility of the media, and the sore loserness of the Democrats who cheered on the investigation. Remember the impeachment of Bill Clinton?

What if Mueller reports that Trump “obstructed justice” by firing Comey or lying to investigators? An obstruction of justice charge against Trump, if not accompanied by persuasive allegations that he engaged in an underlying crime of serious nature, will compound the damage to Mueller and the Justice Department.

The government takes obstruction of justice very seriously, even when the target is innocent of the underlying crime, because obstruction wastes government resources. But the public can be ambivalent.

The reason is simple. Whenever the government charges a person innocent of an underlying crime with obstruction of justice, there are two possible interpretations of events. First, the government’s preferred interpretation—that the person acted irresponsibly by choosing to conceal facts that could have helped the government find the actual culprit or close an expensive investigation. Second, that the government acted irresponsibly by harassing an innocent person who hid facts merely because they were private and embarrassing, or understandably sought to avoid squealing on friends or associates.

I suspect for the middling sorts who have not made up their mind about Trump and could possibly be swayed, the second interpretation will be more plausible than the first. A president will often have even better reason to keep secrets than ordinary people do—reasons of state, or even political reasons if embarrassing information may be exploited by opponents but are of little importance for the country (think of Clinton again).

Trump and his surrogates have laid the ground for this interpretation by accusing Mueller of bias. Mueller, because of his position, can’t defend himself. When he issues a report, if he does, or brings charges, he will need to let his findings speak for themselves. If the facts are not overwhelmingly damning, they will be ground to dust by the Trump obfuscation machine. Ken Starr was more damaged by the Whitewater/Lewinksy investigation than Clinton was. Will history repeat itself, the first time as farce and the second time as tragedy?