In many ways, the obstruction of justice issue is the easiest to understand. But, among other factors, because the Attorney General, a Trump appointee, took it upon himself to assert publicly conclusions that the Mueller Report plainly did not reach, the question has been clouded in the public mind. Republican lackies for the president, and the President himself, continue to repeat the AG’s lies about the Report.
The following analysis will endeavor to tell the truth about the Mueller Report and to ask fair questions that remain in the Report’s wake and as a result of Mueller’s refusal to speak about the substance of the Report.
A. Declining to Decide – Why Was This Not Disclosed at the Outset?
The Report opens with a summary statement of five major-impact concepts that shaped the investigation and the Report as its outcome (the Report says there are only four, but a careful reading indicates five).
- The Office of Special Counsel (OSC) accepted the 2000 Justice Department legal conclusion that a sitting president could not be indicted – the Report refers to this as a limitation on “prosecutorial jurisdiction;” II MR 1.
- The OSC believed, independent of the Justice Department’s opinion about constitutional constraints, indictment of the sitting president would “place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” II MR 1.
- Investigation is nonetheless permitted during the presidential term, immunity does not follow the person after presidential service is over and, very importantly: “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.” II MR 1.
- The OSC decided not to apply an “approach that could potentially result in a judgment that the President committed crimes” because it would be unfair to make such findings when the opportunity for a speedy trial on the charges would not be possible. II MR 2
- Notwithstanding (4) above, if the OSC concluded that the president did not commit crimes, it would have so stated, but it could not so state based on the evidence developed; therefore, the Report neither accuses nor exonerates the president. II MR 2
These introductory words in the Report raise many questions, among them:
- If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
- I will go into this in much more detail later, but given the overwhelming evidence that Trump engaged in multiple acts of obstruction, why was not a single person indicted from his staff, his cabinet and in the Republican Party that supported his every falsehood and deflection?
- How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
- Why was the Special Counsel prepared, if the evidence supported it, to publish a conclusion that the president was innocent of obstruction while being unwilling/unable to publish a conclusion that crimes were committed even if the evidence overwhelmingly supported that judgment? In light of this, the worst that the president could have faced was a finding that the evidence did not exonerate him. Considering that the alternative, an indictment, was never a possibility, Trump easily could see the outcome as a victory. And he did. And it appears that, at least in that sense, this was inevitable. The deck was stacked in Trump’s favor from the beginning.
- Was Mueller’s “no finding of innocence” a kind of double wink, saying, in effect, “my hands were tied, but here’s the evidence for Congress to make the obvious conclusion of guilt and impeach? Maybe, but that seems pretty naïve considering that, until the 2018 mid-term elections, Republicans controlled both houses of Congress and still control the Senate.
I’m not going to go into the details here, but I studied the entire 2000 Justice Department opinion finding that indictment of a sitting president is unconstitutional and it is remarkable in its presumption of undemonstrated facts. It employs extreme language when discussing the presumed burden on the president of having to defend an indictment while in office and seems to be written more to justify a pre-determined result than to analyze the situation neutrally. Like the Mueller investigation itself, the 2000 OLC opinion, like the 1973 opinion that it confirms, seems to have a pre-ordained outcome. Considering that the current occupant of the White House spends little time actually doing presidential work, the overblown language of the OLC opinions rings hollow, turning, as it does, entirely on the presumed interference with presidential responsibilities of the obligation to defend criminal charges.
Turning to the matter at hand, the Mueller Report begins with a summary of the “issues and events” that were examined for obstruction evidence. It includes:
(1) Trump’s lies about his business interests in Russia;
(2) Michael Flynn’s lies about his contacts with Russian Ambassador Kislyak;
(3) Trump’s attempt to extract loyalty commitments and a pledge to leave Flynn alone from then FBI Director Comey;
(4) Trump’s attempt to direct his Deputy National Security Advisor (K.T. McFarland) to produce a letter falsely stating the president had not directed Flynn to discuss U.S. sanctions with Kislyak (why would Trump try to manufacture evidence that he was innocent of soliciting help from Russia if he were innocent?);
(5) Trump’s attempt to prevent Attorney General Jeff Sessions from recusing himself regarding the Russia investigation;
(6) Trump’s attempt to use U.S. intelligence officials and again the FBI Director to make public statements exonerating him from involvement in Russian election interference;
(7) Trump’s firing of FBI Director Comey for the expressed purpose of relieving himself of the Russia investigation;
(8) Trump’s manipulation of the Comey firing letter to make it appear the firing was based on DOJ recommendations when in fact Trump had decided to fire Comey before hearing from DO;
(9) Trump’s attempt to have White House counsel tell the Acting Attorney General that the Special Counsel had conflicts of interest and must be fired;
(10) Trump’s attempt to limit Special Counsel to investigating future election meddling;
(11) Trump’s false narrative about the origins of the Trump Tower meeting, including repeated false denials by his personal attorney that Trump had any role in Trump Jr’s statement about the meeting;
(12) Trump’s attempts to pressure Sessions into un-recusing regarding the Russia investigation;
(13) Trump’s attempts to have White House counsel McGahn falsely state that Trump had not ordered him to have the Special Counsel removed; and
(14) Trump’s attempt to influence testimony from Flynn, Manafort and Cohen, including involvement by Trump’s personal attorney.
The Report then went through a most curious “on the one hand, on the other hand,” regarding Trump’s possible motives for interfering in the SCO investigation, defined by the point at which Trump became aware that he was personally under investigation. Mueller referred to these as “overarching factual issues.” II MR-7. Mueller expressed concern that some of Trump’s actions were within his Article II authority and that his motives should be judged in light of the fact that the investigation found no underlying crime in the Russia investigation, even though such a finding was unnecessary and despite the fact that Trump acted, throughout the entire period, as if he were guilty. II MR-7. Here, Mueller seems to have forgotten his own admonition that the absence of discovered evidence of participation in Russian interference was not proof that no such participation occurred. Finally, Mueller cites the fact that some of Trump’s allegedly obstructive conduct took place in public, although, again, the harm done would be the same for public as for secretive obstructive acts. II MR-7.
My sense of this odd insertion into the Report is that Mueller is revealing a disinclination to hold the president to account when he can’t indict. He is, in effect, gilding the lily in favor of Trump. However, in next analyzing various defenses asserted by Trump’s attorneys, Mueller concludes, correctly I think, that the corrupt use of Article II powers is not immune conduct. Mueller notes that the requirement of corrupt intent is a high standard and “requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” II MR-8.
In the end, Mueller reaffirms the “principle that no person is above the law.” II MR-8. The Report then also concludes that based on the evidence adduced, the SCO could not find that the president committed no obstruction of justice crime. Therefore, although forbidden by policy from stating the prosecutorial conclusion that crimes were committed, the Report “does not exonerate him.” II MR-8.
Despite the clarity of that conclusion, the sitting Attorney General and then Trump himself concluded that the Report did exonerate him. Those statements by the AG and the President were false. The AG also said that he had independently evaluated all the evidence underlying Mueller’s Report and that he, the AG, had concluded that there was no evidence to support a finding of criminal conduct by the president. All that need to said about that is it is extremely unlikely that the AG personally was able to review the entirety of the evidence gathered by Mueller’s team in the time the AG had with the draft report. In making these claims, the AG stepped out of his role as Attorney General of the United States and acted as if he were Trump’s personal attorney defending him against Mueller. Barr’s conclusions should be discounted completely since they conflict with the evidence disclosed in the Report that clearly and strongly demonstrates that Trump did commit obstruction of justice on multiple occasions.
I was always a little uncomfortable with Mueller’s claim that the report “does not exonerate him.” Is it really within the purview of the special counsel or any prosecutor to “exonerate?” It seems to me, with my sort-of-educated-layman’s understanding of the law, that the choices (notwithstanding the business about whether a sitting president can be charged) were to say (1) there is sufficient evidence to bring charges or (2) there is not sufficient evidence to bring charges. Just as a criminal court can find a defendant “guilty” or “not guilty” but not “innocent,” it seems to me that Mueller never had it within his power to exonerate, so that, of course, the report does not–cannot–exonerate. It can either recommend action, or not. Was this what Mueller, with his characteristically convoluted syntax, was trying to say? That the report, inherently, “could not exonerate?” I really wonder.
Thanks for your thoughtful comment. My own belief is that in the unique circumstance of investigating the conduct of a president, a special counsel has some responsibility beyond the bare “guilty/not guilty” prosecutorial decision. For reasons he thought sufficient, Mueller believed he was barred from indicting Trump regardless of the evidence. Even if Mueller had found a “My Plan to Thwart the Mueller Investigation” document signed by Trump in front of the Pope, he could not indict him (Trump). Jumbled into that thinking was Mueller’ s belief that it was “unfair” to accuse someone without being able to provide a speedy trial at which the accused could defend himself. The most he could do, was lay out the evidence and stop there. He feared, however accurately, that if he said nothing further, Trump would claim he was exonerated. So, Mueller, added, we didn’t find him “not guilty” either. We made NO FINDING on whether he committed a crime or didn’t commit a crime. This convolution can indeed be confusing but in the context I don’t see a substantive problem with it. Reality is that when a grand jury fails to bring an indictment, most people say “he was innocent” and not “they made no finding.” Now, consider what happened next. Mueller said “no exoneration.” Trump immediately & repeatedly declared he was exonerated, aided by the inexplicable interjection of opinion by Trump’s “house AG.” We know from Mueller’s detailed evaluation of the Trump-Sessions relationship that Trump thinks the AG works for him and indeed Barr does.I close with this thought: despite Mueller’s falling all over himself to be “fair” to Trump, the evidence of guilt of criminal obstruction of justice is overwhelming.The only real defense offered was that Trump under Article II can do whatever he wants. Trump has said as much publicly in recent days. While the claim explains much of Trump’s behavior, no one outside the White House enablers actually believes it to be true.