Litman:Trump’s candidacy complicates a potential criminal case against him, but it can’t protect him against prosecution. The White House may have overreached in its efforts to protect the president from a campaign finance violation, but it has an unbreachable defense for obstruction of justice. If Trump’s attorneys don’t prevail in the Mueller investigation, the president can always be impeached. But that’s a separate process.
The bottom line is that you can’t make a criminal case of this obstruction of justice.
There’s no question that Trump’s campaign manager was trying to influence the FBI’s investigation but there’s no evidence Trump or anyone else in the campaign did anything wrong in a federal election campaign.
The bigger question is how Trump’s political allies — including the president’s personal lawyers, his former personal advisers and his top White House counsel — who are also being investigated for violations of campaign finance laws, can escape criminal prosecution. The Justice Department hasn’t said what it will do if Trump’s attorneys can’t secure a conviction.
There’s broad consensus that Trump has had a “perfectly natural” desire to fire Mueller, and that he’s obstructed justice in a variety of ways, but there is no evidence that he committed a crime while serving as president.
If Trump’s team does obtain a conviction, he will have committed a serious and substantive crime. If they do not — and Mueller finds that Trump didn’t obstruct justice in the campaign — Mueller’s team won’t need to go any further and there will still be a legal question about whether Trump’s firing of Comey constituted an obstruction of justice.
And if Trump’s team does not obtain a conviction, but his lawyers prevail in their efforts to have him removed from office, there will be a substantial question about whether Trump obstructed justice while serving as president.
For the time being, however, we can’t say that Trump’s political allies in the Trump campaign are in legal jeopardy. Not until the question of obstruction of justice arises