Seth Abramson's take on the breaking NYTimes story

Link to tweet

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1/ First, here's the NYT story. The upshot is that last June Donald Trump *ordered* White House Counsel Don McGahn to fire Special Counsel Bob Mueller. McGahn refused and threatened to quit if Trump went forward with the firing. Ultimately, Trump relented.


2/ Some will wonder why McGahn had enough sway with Trump to stop this from happening. That's a very good question to ask. First, note that McGahn was the attorney from Trump's winning presidential campaign, so the two have known each other and worked together for some time now.
10 replies 138 retweets 579 likes
Seth Abramson
?Verified account @SethAbramson
3h3 hours ago

3/ Next, we have to remember that McGahn is a potential witness—and, importantly, a potential witness *against Trump*—in the Trump-Russia investigation. McGahn was present at nearly all the key moments in the Obstruction fact-pattern that Mueller is considering referring to DOJ.
9 replies 154 retweets 643 likes
Seth Abramson
?Verified account @SethAbramson
3h3 hours ago

4/ If Mueller refers an Obstruction indictment to DOJ, DOJ will likely refer it to the House Judiciary Committee for consideration for articles of impeachment—and whether or not such articles come out of that committee, America already knows Obstruction is an impeachable offense.
8 replies 167 retweets 665 likes
Seth Abramson
?Verified account @SethAbramson
3h3 hours ago

5/ It's an impeachable offense because it already was for Bill Clinton—per the Republican Party and its votes on impeachment in the House. So while Trump may only have had an inkling of this last June, he likely knew enough to see that McGahn was someone whose loyalty he needed.
11 replies 149 retweets 597 likes
Seth Abramson
?Verified account @SethAbramson
3h3 hours ago

6/ McGahn is protected from ever testifying against Donald Trump on some issues—but *not* if the conduct he is to be questioned about involves criminal conduct by the president. Remember that Don McGahn does *not* represent Donald Trump, he represents the Office of the President.
11 replies 266 retweets 862 likes
Seth Abramson
?Verified account @SethAbramson
3h3 hours ago

7/ Definitionally and legally, criminal conduct is not considered within the recognized duties of a president, which means McGahn's role as an attorney for the Office of the President diverges from Trump's own legal interests as and when the president has acted illegally—as here.
10 replies 146 retweets 594 likes
Seth Abramson
?Verified account @SethAbramson
2h2 hours ago

8/ McGahn was present before and after the Comey firing, as Trump concocted pretexts for that illegal action and then—afterward—a coverup for what was a *Russia-based* decision to dump Comey. That decision was illegal for the previously cited reason about the office of president.
2h2 hours ago

9/ No constitutional provision or U.S. statute ever has—or ever could—authorize POTUS to commit a crime. This means that while Trump *is* allowed to fire Comey because, say, he doesn't like Comey's dress sense, he's *not* allowed to fire him to obstruct a criminal investigation.

10/ So McGahn can rather readily be used as an Obstruction witness against Trump, not just because of the Comey firing but much else—for instance attempts to pressure Congressional investigators to drop their probes or attempts to pressure Jeff Sessions into not recusing himself.


11/ Trump was represented by Marc Kasowitz last June, and either Trump or Kasowitz would have sussed out that if Don McGahn quit the White House because he believed Trump was about to commit a *crime*—and make no mistake, that'd pretty much be the basis—it would be a catastrophe.


12/ The firing itself would be a catastrophe politically, but if it occurred concurrent to McGahn quitting, the chances that McGahn would be drawn even further into the investigation as a witness against Trump would be *extremely* high. And we don't know what *else* McGahn knows.

13/ Here's the problem: Trump didn't back off from firing Mueller because he decided it was wrong or outside his authority or—better still—a federal crime.

This is a *critical* point: the NYT establishes Trump *only* relented to keep McGahn from quitting as White House Counsel.

14/ Indeed, there wouldn't have been any story for the NYT to report—this would likely never have leaked—if Trump had simply gone to McGahn for legal advice about firing Mueller, and McGahn had advised him not to do so, and Trump immediately relented in the face of such advice.

15/ Rather, the NYT says that—either on his own counsel or someone else's—Donald Trump *ordered* McGahn to do something. He did *not* ask for his advice, he *ordered* him to fire Mueller. (It may have been Kasowitz's doing, as Kasowitz was urging Trump to go to war with Mueller.)


16/ So what we know now is Trump had the criminal intent—mens rea—to Obstruct by firing his *second* person who was then investigating him, but no crime occurred because there was no actus reus (no act). The only reason there was no act was a key witness threatening to jump ship.

17/ So Trump thinks he has the *authority* to fire Mueller, that doing so is *appropriate* and *warranted*, and he has the *willingness* to do so. Also (lest we forget) he has the willingness to *lie* about wanting to fire Mueller—as he's now been lying about it for seven months.

18/ When many many analysts, me included, were saying after Mueller's appointment that he needed to be protected ASAP from Trump firing him—because we said that that attempt *would* be made—such concerns were dismissed as conspiracy theory and the bill to protect Mueller stalled.


19/ One effect of this breaking news therefore must be immediate passage of the bill to protect Mueller that was *only* not passed previously because the GOP told America—and they were dead wrong—that this president never had and would never have any intention of firing Mueller.

20/ But it's more than that: Trump was willing to fire Mueller when his level of legal jeopardy was unclear, and Mueller had brought *no* indictments and secured *no* cooperation deals with top Trump national security aides. So what is Trump's temperature on firing Mueller *now*?

CONCLUSION/ This is the last moment for Republicans to jump off the Trump ship in the eyes of history. Trump is the Titanic and the iceberg is *dead ahead*. He *will* try to fire Mueller—a crime and impeachable as Obstruction. Congress must get on the right side of history *now*.

NOTE/ There are other ancillary effects to this story: for instance, Bill Burck *must* now see that he needs to get the hell off two of the three cases he's currently working as attorney: Bannon, McGahn, and Priebus. Representing all three is no longer (really never was) tenable."