A statue of Justice is seen outside as a sentencing hearing takes place for Marcel Lehel Lazar, a hacker known as Guccifer, at the Albert V. Bryan US federal courthouse September 1, 2016 in Alexandria, Virginia.
Lazar earlier pleaded guilty to unauthorized access to a protected computer and aggravated identity theft. 'Guccifer' allegedly published correspondence that led to the discovery of former US Secretary of State Hillary Clinton's private email server system. / AFP / Brendan Smialowski        (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)
What is obstruction of justice?
01:17 - Source: CNN

Editor’s Note: Joey Jackson is a criminal defense attorney and a legal analyst for CNN and HLN. The views expressed here are solely his.

CNN  — 

Did President Donald Trump obstruct justice with regard to special counsel Robert Mueller’s Russia investigation?

It’s not the first time this has been asked, but it has resurfaced with the news that in addition to firing former FBI Director James Comey, the President last June allegedly wanted Mueller fired as well. The President has denied the allegation.

It will be the deciding question of Trump’s presidency, and he has two ways to answer it – but he should choose wisely.

As it stands now, the only way the obstruction question can be answered in the affirmative is if Trump speaks with investigators – instead of smartly asserting his Fifth Amendment privilege against self-incrimination. There is a school of thought that Trump’s assertion of the Fifth would be politically untenable as innocent people are anxious to speak up and assert their innocence.

In this regard, the President has a choice. He could succumb to the whims of political pressure and talk – as he has said he wishes to do and as any innocent person likely would. Or he could use his lawyers’ advice as a political shield and state that as much as he desired to tell the whole truth and nothing but the truth so help him God, his lawyers won’t allow him to do so.

If he is disciplined enough to pursue this approach, then he walks, skates and even break-dances his way into the clear – after all is said and done and the investigation concludes. Onward he marches, to tout his tax cuts, unprecedented deregulation, a booming stock market and cutting a deal for his wall, border security and protection for the Dreamers.

If he talks, however, his presidency may very well be over. Prosecutors would walk him right off the ledge – as it relates to a potential obstruction charge and even that other crime called perjury. Here’s why. For those who may not be aware, this President plays loose and fast with the truth. But I digress. Talking would also give prosecutors an insight into what he is and was thinking. That’s critical because seasoned prosecutors would want to know what the thought process was behind his actions relating to the Comey firing and his alleged desire to fire Mueller. The President’s words would give them a very direct window.

Right now, all that exists is circumstantial evidence. On the surface, it might appear that he did this to impede the investigation and to otherwise circumvent judicial process. That is, that he didn’t want prosecutors discovering the truth.

Without saying a word though, Trump and his team can hide behind the standard and commonly parroted assertions that: 1) he’s an unconventional president who speaks his mind while acting and doing what he pleases; 2) he’s a novice to the political process and not adept in the normal separation of powers; 3) he has the executive authority to fire who he wishes on any legal basis he chooses; 4) there was never any collusion or obstruction, and; 5) this is a major witch hunt being pursued by flunkies with a leftist ideology upset that the Democrats lost the election.

Ultimately, all those who believe Trump colluded with Russia while repeatedly lying about it will continue to believe this anyway – whether he talks to Mueller or not.

Similarly, his die-hard supporters will take to their graves the view that this is a witch hunt – no matter what Trump says or doesn’t say.

In this regard, all the circumstantial evidence will remain just that. And political and legal pundits can debate the “why” regarding the firing of Comey and the alleged contemplated firing of Mueller.

Once Trump opens his mouth, however, he simultaneously opens up the dimensions of his mind, thoughts, reasoning, thinking and analytical process for prosecutors to savagely assail, contradict, denigrate, belittle and undermine.

In doing so, the once-circumstantial evidence becomes quite direct. And there is a sea of difference between evidence based upon circumstance, innuendo and interpretation – and that which is direct and potentially contradictory. Trump has no idea what others have told special counsel investigators and in what detail they have done so. Speaking to them is a trap and a monumental risk not worth taking.

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    While it’s an open question as to whether a sitting president may be indicted, or must first be impeached and then prosecuted, the goal for the Trump team is not to have that question answered on his watch.

    Finally, if Trump is disciplined enough to stay quiet and prosecutors have to make a case against him based upon splitting hairs and ascribing a basis for his actions, the case will go nowhere.

    As it stands, the Republican Party will continue to give him cover. Should Trump put a bull’s-eye on his own back by walking into this trap, all bets may be off. These investigations tend to have that effect. Remember a guy by the name of Richard Nixon?