The Mueller Report–Volume II

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In the first volume of his report, Special Counsel Robert Mueller reported that the investigation failed to establish a conspiracy between the Trump Campaign and Russians hackers, although it did establish that the Russians interfered in the 2016 election in many ways. The second volume finds significantly more evidence that Trump tried to obstruct the investigation itself.

Legal limitations

In reaching any conclusion about obstruction of justice, the Office of Special Counsel was restricted by Department of Justice regulations, which prohibit indicting a sitting president. Not only that, the report refrained from even accusing President Trump of obstruction, arguing that it would be unfair to accuse someone of a crime without indicting them. As Mueller explained:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.”…Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The implication is that no matter how much evidence of crime he found, Mueller was not going to conclude that a crime had been committed! He was only going to put the evidence out there and let someone else draw the appropriate conclusion and take the appropriate action. Given the Department of Justice’s prohibition on accusing or indicting a sitting president, only two possible ways of bringing a president to justice remain: an accusation of “high crimes and misdemeanors” by the House of Representatives, or prosecution by state or federal authorities after he leaves office.

The Trump administration has been quick to declare the case closed because the Mueller report failed to conclude that the President had committed a crime. That is ridiculous, since the investigation was restricted from reaching such a conclusion before it began (although the public was not very aware of that). What it did do was look for but fail to find sufficient evidence of conspiracy, but find ample evidence of obstruction.

Evidence of obstruction

The report summarized the evidence of obstruction this way:

Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

Here are some of the conclusions from the section, “Factual Results of the Obstruction Investigation.”

After Michael Flynn was caught lying to the FBI about his discussion of sanctions with the Russian ambassador, Trump met privately with FBI Director Comey and asked him to let Flynn go. “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russian investigation and that he believed…that terminating Flynn would end ‘the whole Russia thing’.” Shortly afterwards, he fired Comey.

When Attorney General Jeff Sessions told the President that a Special Counsel had been appointed (in May of 2017), he was extremely upset. He blamed Sessions for losing control of the investigation by recusing himself, and asked for his resignation. Trump relented and didn’t accept the resignation at that time, but continued to criticize Sessions’ recusal, eventually firing him the following year.

One month after the Special Counsel was appointed, Trump directed White House counsel Don McGahn to tell Deputy Attorney General Rod Rosenstein to fire Mueller. McGahn resisted the order and decided to resign, but was talked into remaining by Reince Priebus and Steve Bannon. Trump later told McGahn to deny that he had been ordered to fire the Special Counsel, but he refused.

Trump also tried to curtail the investigation by asking former campaign chair Corey Lewandowski to convey a message to Attorney General Sessions. “Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections’.”

When the Trump Tower meeting was made public, the meeting in which Russians offered information on Hillary Clinton in return for assistance in ending sanctions, the President dictated a statement claiming that the meeting had only been about “Russian adoption.”

When former campaign chair Paul Manafort was charged with making false statements and other crimes, Trump did not want him to cooperate with the investigation. “The President and his personal counsel made repeated statements suggesting that pardon was a possibility for Manafort, while also making it clear that the President did not want Manaford to ‘flip’ and cooperate with the government.” Manafort told his co-conspirator Rick Gates, who later told investigators, that “it was stupid to plead, saying that he had been in touch with the President’s counsel and repeating that they should ‘sit tight’ and ‘we’ll be taken care of’.” Trump praised Manafort for refusing to “break”.

The President personal lawyer, Michael Cohen, was only in Trump’s good graces as long as he lied for the President. He lied to Congress about how long Trump continued to pursue his Moscow project while denying it during the campaign, and also about the payment of hush money to the porn star with whom Trump had an affair.  “Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not ‘flip’. Cohen recalled the President’s personal counsel telling him that he would be protected so long as he did not go ‘rogue’.” After he started cooperating with prosecutors, Trump called him a “rat”, attacked his family, and tried to undermine his credibility.

Issues to be resolved

Three elements have to be present to support a charge of criminal obstruction: “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”

Knowing what the President intended when he did what he did is especially tricky, considering that he lies so often, and that he refused to answer any of the Special Counsel’s questions on the subject of obstruction.

For example, what was Trump thinking when he fired Comey? Did he really think that Comey was so essential that this would stop the entire Russian investigation? And even if he did want to stop the investigation, was it because he was covering up a conspiracy, or was it just that he was afraid of other embarrassing revelations, such as the Trump Tower Moscow deal that he had lied about?

The Mueller Report did not have to answer all these questions, since it was precluded from accusing the President of a crime anyway, as explained above. But Congress would have to address them if it chose to pursue the matter further. This is as far as the Special Counsel could go:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Now President Trump is refusing to allow anyone in his administration to testify to Congress, even in response to a legal subpoena. This applies not only to a possible impeachment hearing but to any oversight committee of the House. Even Richard Nixon never went that far. One can only conclude that the obstruction continues.

 

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