Mueller Time

The cards are on the table…now what?

Though I’m probably not the first to say it, I won’t be coy.

We were wrong about the conspiracy.

All this time, we thought the President had been successful in his numerous, repeated, and documented attempts to gain dirt on Clinton through illicit and illegal channels. It seemed inevitable that, in over a hundred contacts between Trump associates and Russian operatives, someone would have actually managed to achieve their goals.

But, in the end, it looks like we gave the President too much credit.

Even though Trump knew Russia was trying to help him win the election, even though Trump knew Russian spies were attempting to infiltrate his campaign, even though Trump’s associates passed secrets to people they believed to be Russian spies, even though Trump hired people with known Russian connections and explicitly directed them to pursue the same information that the IRA was seeking…it appears that all Trump’s campaign associates were simply too inept to successfully conspire with a foreign government.

As the Special Counsel’s report put it:

“The investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts.”

I suppose that’s comforting, in a sense. Sort of like your surgeon telling you, “Well, we were trying to harvest your organs to sell them on the black market, but I couldn’t remember the difference between a liver and a kidney, so I just ended up sewing you shut again.”

Conspiracy is a crime of commission, like larceny or tax evasion. If you try really hard to steal a car but can’t manage to get it started, you haven’t actually stolen the car. If you try your best to trick the IRS but end up paying all the taxes you owe by mistake, you’re not guilty of anything other than general ineptitude. No matter how unpatriotic, underhanded, and duplicitous Trump’s motives were, it seems he is not actually guilty of conspiracy.

Obstruction, on the other hand, hinges much more on intent. If Trump took actions intended to unlawfully impede an actual investigation, he’s guilty of obstruction even if he’s ultimately unsuccessful.

Mueller explained that because DOJ policy precluded an indictment of a sitting president and thus rendered improper any prosecutorial recommendation to do so, he determined instead to “[conduct] a thorough and factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” He then proceeded to lay out the actions for which Trump could be indicted — were he not a sitting president — in what is unmistakably the structure of a criminal complaint.

Count One.

The President attempts to quash the investigation of Michael Flynn for personal gain.

“The circumstances of the [Flynn] conversation show that the President was asking Comey to close the FBI’s investigation into Flynn. [] Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation. [] And the President later denied that he cleared the room…a denial that would have been unnecessary if he believed his request was a proper exercise of prosecutorial discretion.”

Count Two.

The President fires Comey in an effort to protect himself.

“Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the President was not personally under investigation. The President’s other stated rationales for why he fired Comey are not similarly supported by the evidence.

“Other evidence, however, indicates that the President wanted to protect himself from an investigation into his campaign. … After the President learned of Session’s recusal from the Russia investigation, the President was furious and said he wanted an [AG] who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents.”

The President intends to impede an investigation he believes would uncover crimes or political and personal embarrassments.

“The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia. …But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.”

Count Three.

The President attempts to fire the Special Counsel in order to avoid criminal prosecution of his own conduct.

“Substantial evidence…supports the conclusion that the President…in fact directed McGahn to call Rosenstein to have the Special Counsel removed.

“Substantial evidence indicates that…the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.

“Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct.”

The President is aware that attempting to fire the Special Counsel is an improper use of official powers.

“The evidence…indicates that news that an obstruction investigation had been opened is what led the President to call McGahn to have the Special Counsel terminated.

“There is also evidence that the President knew that he should not have made those calls to McGahn. McGahn had specifically told the president that [he himself] could not be involved in pressing conflicts claims. …Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel.

“[The President’s subsequent] denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”

Count Four.

The President attempts to use his official powers to improperly curtail the investigation and prevent scrutiny of his own conduct.

“Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”

Count Five.

The President orders his subordinate to lie about his attempts to obstruct.

“Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct toward the investigation.”

Count Six.

The President takes actions calculated to discourage a witness against him from cooperating.

“There is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government. …Those statements…suggested that a pardon was more likely possibility if Manafort continued not to cooperate with the government. …The President’s public statements during the Manafort trial…also had the potential to influence the trial jury. The President’s actions towards Flynn [and] Manafort…appear to have been connected to pending or anticipated official proceedings involving each individual. …Evidence concerning the President’s conduct toward Manafort indicates that the President intended to encourage Manafort not to cooperate with the government.”

At no point in the special counsel’s report did Mueller ever evince a design or intent to refer the question of obstruction to the Attorney General. Rather, Mueller explicitly and definitively argued that the Department of Justice — including the office of the Attorney General — could not legitimately come to a prosecutorial decision on the question of whether the President committed obstruction. Mueller identified Congress, not the DOJ, as the entity responsible for curtailing the executive abuses of power described in his report. While Mueller either referred or transferred numerous criminal and counterintelligence investigations to other branches of law enforcement, he explicitly did not refer the question of obstruction to the attorney general.

“We concluded that Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.”

Thus, William Barr’s claim that he made no finding of obstruction is merely an opinion. It holds no more weight than his comments disparaging the investigation long before he was appointed. While his efforts to downplay the severity of the findings in the report are troubling, they need not impact the results of the Special Counsel’s investigation. The next step is clear.

David MacMillan is a freelance writer, paralegal, and law student in Washington, DC.

Anyone with really good ideas will always be looking for better ones. Writing about law, fundamentalism, and science denial…book to follow.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store