Recently in It’s Mueller Time!,” I discussed the Meuller Report’s treatment of the issue of whether President Trump or his campaign criminally conspired with the Russians during the 2016 campaign (“Russian Collusion”). I relied on Attorney General William Barr’s summary of the principal conclusions of the report. Since then the full report with very limited required redactions has been released. After weeks of partisan howling that Barr had been misrepresenting or “spinning” the report’s principal conclusions, it turns out that I do not need to change a word of what I wrote earlier.
I deferred discussion of the second issue in the Report, the question of whether the President engage in criminal Obstruction of Justice, as I thought it required more detailed analysis of the conduct suspected to constitute the criminal offense.
As the Attorney General described it in his summary – accurately as the released report demonstrates:
“The Special Counsel … did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction. The Special Counsel states that ‘while this report does not conclude that the President committed a crime, it also does not exonerate him.’”
Before we get to the facts, there is a legal issue on which Barr and Mueller disagree: can a President be charged with Obstruction for performing a Constitutional function like firing FBI Director Comey? Barr’s argument is that an affirmative answer would chill any President’s exercise of his duties, as any action might be open to an examination of the President’s motive. Mueller concedes, “the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings.”
However, Mueller argues that inquiries into Presidential motive will not chill performance of those duties. The Comey firing is a perfect example of a situation where inquiry into Presidential motive might chill the otherwise proper action. Trump fired Comey upon receipt of a rationale laid out by Deputy Attorney General Rosenstein for Comey’s handling of the Hillary Clinton private server matter. Soon though, Trump publicly stated his personal motivation was Comey’s handling of the Russia investigation. Comey had refused to say publicly what he had told Trump privately, that the President was not a subject of the investigation. The Special Counsel’s investigation was promptly expanded to include the question of Obstruction of Justice.
In 1992 the very zealous Iran-Contra Independent Counsel Lawrence Walsh indicted former Defense Secretary Casper Weinberger for alleged false statements, one week before the Presidential election. Defeated President George H.W. Bush pardoned Weinberger before his trial. Walsh stated that Bush’s pardon would constitute Obstruction, except that the President’s performance of his Constitutional functions cannot be considered Obstruction.
All of this is entirely aside from the Justice Department policy regulation that a sitting President cannot be criminally charged. As he is the only executive officer with authority specified in the Constitution, the President is not only commander-in-chief of the military, but also chief foreign affairs officer, chief financial officer and chief law enforcement and prosecution officer. Any investigator and prosecutor has discretion as to when to terminate an investigation or prosecution. Any investigation or prosecution the President “obstructs” is being carried out by someone under the President’s own authority.
The legal issue is interesting but academic, as it did not decide the case. Barr, without relying on the Constitutional issue, concluded that the evidence did not rise to the level required for prosecution under Justice Department standards.
Mueller correctly sets out the elements of Obstruction of Justice
“Three basic elements are common to most of the relevant obstruction statutes: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”
As to the facts in the case, the Mueller Report identifies a number of incidents as possibly constituting Obstruction of Justice. They may be fairly considered in three categories.
- Trump’s dealings with FBI Director Comey
- Trump’s orders or urging White House and National Security officials to end or limit the Russian Collusion investigation or fire Attorney General Sessions or Mueller.
- Trump’s public statements, mostly Tweets, many of them false, about the investigation, supporting potential witnesses who declined to testify against him, trashing those he perceived would testify against him, disparaging the Special Counsel and helping draft a false press statement about the June 9, 2016 meeting at Trump Tower including Donald Trump Jr. and other campaign staff and a Russian attorney who promised unfavorable information – dirt – on Hillary Clinton.
From his election Trump has been in public denial about Russian meddling in the election. In large part this was because from the outset the Democrats and their allies in the media conflated that Russian involvement with an effort to assist his election with his collusion. His principal concern was that these allegations would undermine confidence in his legitimacy and certainly many opponents argued exactly that his Presidency was somehow illegitimate.
Trump is utterly devoid of any sense of irony in the facts that he himself tried to undermine Barack Obama’s Presidency with the “birther” conspiracy and Hillary Clinton’s expected victory with campaign claims that the election would be “rigged.”
The Meuller Report found no evidence of Trump collusion with the Russians and, pointedly, did not add, as it did on the subject of Obstruction, that it “does not exonerate him.” The absence of an underlying crime does not prevent a conviction for Obstruction. However, even the Mueller Report states that the fact that no underlying crime is found supports the notion that Trump’s actions were motivated by concerns other than the “corrupt intent” required to prove Obstruction. As noted above, Mueller wrote, “the President’s actions to serve political or policy interests would not qualify as corrupt. The President’s role as head of the government necessarily requires him to take into account political factors in making policy decisions that affect law-enforcement actions and proceedings.”
Trump’s dealings with Comey, his efforts to end or limit the investigation and his public statements may, in the absence of an underlying crime to cover up, easily be said to have been for the purpose of protecting his legitimacy and permitting him to proceed with his political agenda. The disruption in his ability to function as President was coming principally, not from the Mueller investigation, but from his political opponents and the media making use of the existence of the investigation.
None of it is pretty but it is not criminal Obstruction. That doesn’t mean there are not facts sufficient to make out a prima facie case – one sufficient to withstand a directed verdict – but it’s not a case a prosecutor would think had a reasonable chance of success.
Mueller on May 29 made a televised public statement that did not add anything to the substance of his report. Mueller said that he couldn’t exonerate Trump of Obstruction, couldn’t indict and that it wouldn’t be fair to accuse him without a forum for him to defend himself. He said the decision was for someone else. He didn’t mean Barr. He meant Congress. He said all of this in his report. Watching the talking heads on cable news, one wonders if any of them actually read the report. The only things new were the fact that Mueller did not intend ever to say anything on the subject to anyone that was not contained in his report and a reference to Barr’s decision to release only a Summary of Principal Conclusions, rather than Mueller’s factual summary, preferring to release the report in its entirety after vetting. Of the latter Mueller said, “I certainly do not question the Attorney General’s good faith in that decision.” Of course, that may be Washington-speak for “He’s my friend and colleague, so I won’t say he was spinning it.”
The Trump case remains where it had to be all along – in the only place a President can be prosecuted – the Congress. There’s no case for “Collusion” and, only arguably, a very thin one for Obstruction. Democrats in the House have the numbers to impeach but many of the members of their new majority come from swing districts that voted for Trump. An impeachment would be a futile gesture with no chance of getting the two-thirds necessary to convict him in the Senate. An impeachment could backfire on the Democrats as the impeachment of Bill Clinton did on the Republicans in 1998. And the election is just a year away.
Meanwhile investigations by the Department of Justice Inspector General and an internal DOJ Special Counsel are now proceeding into the origins of the expansion of the investigation of Russian election interference to an investigation of the Trump campaign. Earlier efforts to investigate this subject were hampered by loud denunciations that the new investigations were merely an effort to subvert the Mueller investigation. See “The “Russian Collusion” Investigation Takes an Unexpected Bounce” and “The House Intelligence Memo: Damning Details.” Those objections no longer apply and the new investigations are proceeding.
Watch this space.