Let’s Collude with Reality for a Moment — Trump Obstructed Justice
There was “no collusion” Barr assured reporters before any at the press conference were allowed to see the report.
Of course, there is no law respecting ‘collusion’ specifically, but it is true that the Special Counsel’s Office did not find criminal conspiracy between the Trump Campaign and the Russian government.
No collusion? Fair enough. But, what about the obstruction of justice inquiry? Quite simply: the President obstructed justice… or at least tried to on numerous occasions — and just trying is enough to qualify for federal obstruction of justice.
While Mueller officially makes no determination on obstruction, he made it clear that Congress ought to decide this matter. The legal bar for proving obstruction of justice is a high standard because prosecutors must prove ‘corrupt intent’. It appears straightforward, but proving to a jury a person’s mindset and intentions beyond a reasonable doubt is much harder than it sounds. As such, Mueller included the now infamous line:
“while this report does not conclude that the president committed a crime, it also does not exonerate him”
Accordingly, Mueller specifically included:
“If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of Justice we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”
Evidently, the Special Counsel’s Office is clear in its intentions to not absolve the President of obstruction, even if the Office will not charge him. Although the Office will not charge him, the door is explicitly left open for Congress to act.
“We concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of Justice.”
“The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
Mueller and his team have repeatedly proved to be careful and deliberate in their choice of words; the Office’s call on Congress specifically was no accident. Given that the immediate future of this report will be determined in the halls of Congress, the case must be presented as to how the President attempted to obstruct justice. While I will not dive into every instance Mueller lays out, the more important examples are as follows.
The Comey Firing
First, we must debunk the most common argument: a person cannot be charged with obstruction if they were found not to have committed the initial crime. Mueller addresses this at the beginning of the report by stating:
“The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.”
That “underlying wrong” in this case is the possible coordination between the Trump Campaign and Russia. Importantly, James Comey, while he was FBI Director, refused to publicly clear the President of any wrongdoing as it related to Russia and would not cease investigations into Michael Flynn, the then National Security Advisor. Both requests to Comey were made by Trump himself. What this means is explained by Mueller as:
“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 wanted to protect himself from an investigation into his campaign…[T]he 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.”
It is understandable to want to be cleared of a crime regardless of one’s position, but especially so as President. However, there is evidence to suggest that the President sought to end a federal investigation into his campaign which is obstructive. Ironically, what saved Trump from being charged in this instance was that his wishes were not met. Mueller notes that the act would have qualified for obstruction had the investigation been consequently ended or shortened. Since the investigation was not ended, mostly due to the internal structure of the FBI, and the fact that this action actually prolonged the investigation, the act did not meet the threshold for obstruction.
Had the President‘s plan not backfired, his intentions were clear. Mueller notes:
“the President participated in an interview with Lester Holt. The President told White House Counsel’s Office attorneys in advance of the interview that the communications team could not get the story right, so he was going on Lester Holt to say what really happened…The President told Holt… “And in fact, when I decided to [fire Comey], I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story.”
“Firing Comey would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation”
Trump admitted to Holt that Comey was fired over the FBI’s investigation into Trump and Russia. Aids to the President urged him not to fire Comey, but the President went ahead with his plans and proceeded to lie to the public as to why he fired him as well.
By firing Comey, Trump believed that the investigation into Russia would fade away. This would have been criminally obstructive had Trump actually achieved that desired result.
To recap: the President went on Lester Holt to say “what really happened” and explained that he fired the FBI Director over ongoing investigations. His actions would have been obstructive had he gotten his way but ultimately did not obstruct because his actions happened to have the opposite effect of what he desired.
Attempts to fire the Attorney General and the Special Counsel
This is the second major and largest aspect of the obstruction piece. The President was furious that the Special Counsel had been appointed and aimed to use his power to fire the Special Counsel by whatever means necessary.
In 2017, Attorney General Jeff Sessions recused himself from the investigation due to conflicts of interest regarding his contacts with Russians. This meant that he relinquished his oversight and authority over the Special Counsel.
Before officially recusing, however, the President spent most of the day on March 2, 2017, pleading with Sessions not to recuse himself. The President asked Sessions personally but also asked through White House Counsel Don McGahn and even Senate Majority Leader Mitch McConnell. Among other reasons, the President was concerned that Sessions’ recusal would, as McGahn put it:
“leave the President unprotected from an investigation that could hobble the presidency”
The President wished he had an Attorney General who acted as a personal attorney, not the U.S. government’s attorney.
“You’re telling me that Bobby and Jack didn’t talk about investigations?… Or Obama didn’t tell Eric Holder who to investigate?”
This language illustrates the role the President views the Attorney General should have — one which is beholden to the President and acts as a partisan lawyer targeting personal or political opponents.
Defying the advice of his aids, the President later fired the FBI Director. This prompted the appointment of the Special Counsel.
“Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.” The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, “How could you let this happen, Jeff?” The President said the position of Attorney General was his most important appointment and that Sessions had “let [him) down”
“You were supposed to protect me”
After Sessions failed to “protect” the President and refused to instruct the Justice Department to prosecute Hillary Clinton at the directive of the President, President Trump began looking to fire the Attorney General and the Special Counsel.
The President had Sessions submit a letter of resignation in 2017 but ultimately did not accept it. Keeping the letter in his pocket as Sessions left the Oval, Trump’s advisors worried that by having Sessions’ letter of resignation Trump could open himself to legal scrutiny by improperly influencing Sessions. Days later, the President returned the letter to Sessions. Every subsequent time Sessions would visit the White House he was said to have brought this letter in his pocket.
So, instead of firing the Attorney General, the President ordered White House Counsel Don McGahn to help remove the Special Counsel. The reason?
“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 — and most immediately, to reports that the President was being investigated for potential obstruction of justice.”
When McGahn threatened to quit instead of assisting in the firing of the Special Counsel, the President backed off. In a later conversation, the President insisted McGahn publicly deny he was ordered to have the Special Counsel fired, but McGahn refused to spread this falsehood.
“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 towards the investigation.”
McGahn drew direct comparisons to the Watergate scandal and recognized the similarities between Trump’s actions and those of Nixon. He told the President that he did not want to be at the heart of another Saturday Night Massacre which is what he felt the President was essentially asking for. Despite the President backing off from McGahn, Trump invited Corey Lewandowski, his former campaign manager, to the White House two days later. The President, eager to limit or stop the investigation, was willing to go outside his own government and ask a private citizen to deliver a message that no one else at this point would.
“The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions. The President then asked Lewandowski to deliver a message to Sessions and said “write this down.”
“The President directed that Sessions should give a speech publicly announcing:”
“I know that I recused myself from certain things having to do with specific areas. But our POTUS … is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.”
Factually, this account, dictated by the President, is wrong. As the report has shown, numerous Russians had ties to the campaign and people within Trump’s family. Just weeks after this meeting with Lewandowski, the Times would break the story that Donald Trump Jr., Jared Kushner, and Paul Manafort met with several Russians in Trump Tower in June 2016 to discuss “dirt” on Hillary Clinton.
But the President continued with Lewandowski:
“The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference”
In the end, Lewandowski never delivered the message. Nonetheless, the President conspired to demand his Attorney General force the Special Counsel to limit the scope of the investigation. Had this happened, the Special Counsel would no longer be allowed to investigate the President or his campaign as it would be outside his jurisdiction.
“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….There is evidence that at least one purpose of the President’s conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope….A reasonable inference […] is that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation.”
To recap: There is undoubtedly much to absorb from just these few excerpts out of the 448 total pages. What these accounts alone tell us, though, is that highly questionable actions were given and sometimes executed by the President.
The President hoped to install an Attorney General who would protect him personally from legal troubles or investigations. When the Attorney General recused himself, the President grew resentful — if Sessions’ could not protect Trump than what was his purpose? When ordered to unrecuse himself, the Attorney General refused. When ordered to instead launch an investigation into the President’s political opponent, the Attorney General refused. When the President ordered a private citizen to instruct the Attorney General to limit the scope of the Special Counsel’s investigation, Lewandowski refused. When the President directed the White House Counsel to order the Justice Department to fire the Special Counsel, the White House Counsel refused. Indeed, there is no line more representative of the obstruction case in Mueller’s report then the following:
“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
It is not that the President did not aim to take obstructive actions, but rather those around him simply refused to execute his orders. It is a person’s intent, though, the law is concerned with and Trump certainly appeared to be intent on obstructing the investigation. Thus, there are still grounds for obstruction of justice and that is why Mueller has left this aspect of the report unresolved. As for what happens in the future, we look to the end of Mueller’s report.
Going Forward
The current Attorney General, William Barr, has a particularly relevant philosophy on the matter of obstruction of justice. Writing unprompted in 2017 that a president cannot be indicted for obstruction of justice, it would seem he is a perfect fit for the ‘protector’ Trump is looking for at the head of the Justice Department.
Additionally, Mueller cites Justice Department policy that a sitting president cannot be indicted.
“O.L.C. opinion concludes that a sitting president may not be prosecuted”
However, this is where things get more interesting.
It cannot be overstated how crucial it is that Mueller specifically chose not to exonerate Trump. What he was essentially saying is that while he will not be charged at this time, there is reason to believe a case could be brought later. Aside from Congress taking action (which has already been mentioned), Mueller included the important line:
“The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office.”
Again, Mueller and his team choose their words carefully. If there were no grounds for a case to be brought, they would have said as much.
“If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of Justice we would so state.”
These lines show the Special Counsel intentionally wanted to leave open the door for later action:
“we determined not to apply an approach that could potentially result in a judgement that the President committed crimes.”
“Because we determined not to make a traditional prosecutorial judgement, we did not draw ultimate conclusions about the President’s conduct.”
What this means now is that while the Mueller report has finally been shared with the public, it is far from becoming history. A successful impeachment and removal from office is still highly unlikely, but Mueller’s report should worry the President. Indeed, the only thing truly protecting Trump is his job, a job which is has a constitutional time limit.
No one knows how this will end, but one thing is certain — Mueller may not have thrown the book at Trump, but he also hasn’t closed this chapter of Trump’s presidency either.
If you would like to read more, here is my piece on Bill Barr and his role in the Mueller Report.
