What the Mueller Report Has to Say About Obstruction
The second half of Robert Mueller’s 448-page magnum opus, simply titled Volume II, focuses entirely on actions taken by Donald Trump that may constitute obstruction of justice. After an extensive review of almost a dozen actions taken by the President that were clearly meant to distract, disturb, or destroy the Special Counsel’s investigation, Mueller decided not to make a “traditional” prosecutorial decision.
The decision not to decide explicitly one way or the other was undoubtedly the result of much thought on the part of the Special Counsel’s team. In ‘General Statements’ made about the President’s conduct, Mueller is careful to explain how unique the President is as the subject of a criminal investigation. In particular, he notes that the President has the power to take actions that on their face may be legal for the President to do unless there is an ulterior motive. Firing the FBI Director, for example. Additionally, Mueller adhered to current Justice Department guidelines that say a sitting President cannot be indicted
As the Mueller team felt they were constrained by the guidelines to the extent that they could not indict President Trump, the report emphasizes the fact that it would run counter to the interests of fairness in the judicial system to proclaim any individual (even the President) committed crimes without giving them a chance to defend themselves in court. However, the report makes clear that they believe a President can be indicted once they are out of office, and it goes on to cite interests in preserving the factual record while evidence is fresh in the case any future proceedings were to commence.
The Mueller team writes in the report that although President Trump was not found guilty of an underlying crime himself (though many surrounding him were), this is not determinative of the separate crime of obstruction of justice. To quote the report: “[o]bstruction of justice can be motivated by a desire to protect non-criminal personal interests…the injury to the integrity of the justice system is the same”. Similarly, that much of the President’s threatening of witnesses or dangling of pardons was done out in public or on Twitter does not change the legality for the same reasons; that the administration of justice can be obstructed both privately and publicly.
Ultimately, the Mueller team chose not to try and indict Trump for the reasons enumerated above, but they also made very clear and repeated that had they been able to say that the President did not obstruct justice, they would have said so. To be clear, this means that after two years of intense investigation, the Special Counsel found sufficient evidence of obstruction of justice by the President that he explicitly chose to write over 200 pages detailing those various events and actions. While he was prevented from indicting the President under DOJ guidelines, he writes that he is preserving the factual record and that once a President leaves office they can be indicted.
Those actions that raise obstruction of justice issues are detailed throughout Volume II of the report. Mueller divides them into at least eleven separate actions taken by the President himself that includes attempts to dissuade or intimidate witnesses, to control and restrict the Special Counsel, and to end the Mueller investigation outright. The Mueller report divides Trump’s actions into two ‘phases’, the first leading up to and immediately after his firing of FBI Director James Comey. During this period of time, the President made a number of public and private statements, including saying after firing Michael Flynn and later Comey that “the Russia thing is over” and that “great pressure” had been “taken off”. The second phase includes all that occurred after Trump found out the Special Counsel was personally investigating him.
First, the President tried repeatedly to have the Attorney General of the United States, Jeff Sessions, un-recuse himself from the Russia probe so that Sessions could control Mueller’s investigation. The report finds that Trump tried to have the White House Counsel, Don McGahn, prevent Sessions from recusing himself with regards to the Russia investigation. Later, Trump tried to have his former campaign manager Corey Lewandowski deliver a message to Sessions telling him to inform the Special Counsel that he would be focusing on “future elections” from now on. In October of 2017, Trump even called Sessions directly at home and asked him to un-recuse himself yet again.
Essentially, once the President lost what he perceived to be direct control through the Attorney General, he took steps to have the investigation change focus so as to avoid looking into Trump’s own conduct. The only reason such efforts were ultimately unsuccessful is that McGahn refused to follow the President’s requests and Lewandowski farmed out his obstructive behavior to someone who in turn felt uncomfortable delivering the message to Sessions.
When re-direction of the investigation did not seem to work, the President then turned to try to end it entirely. In June of 2017, Trump told McGahn to take the necessary steps to remove Robert Mueller from his positions as Special Counsel. McGahn refused and almost resigned over the matter. Then, in 2018, when reports of this came to light, Trump pressured McGahn to deny reports that he had ever been asked by the President to remove Mueller.
In addition to pushing McGahn to deny reports of Mueller’s attempted firing, Trump also took steps to keep other evidence from coming to light. For example, he edited Donald Trump Jr.’s statement about the now infamous Trump Tower meeting in 2016, and his personal lawyer later lied to the public by denying that Trump had played any role in editing Trump Jr.’s statement.
The President also attempted, both publicly and privately, to deter witnesses from cooperating with the Justice Department in the investigation. Like any good mob boss, the President often heaped praise on those who were not cooperating with the investigators, and if any of them did become witnesses he expressed outrage and hostility for flipping on him. While Flynn was still under a joint defense agreement with the President, Trump’s personal counsel voiced the President’s warm feelings towards Flynn. But once he began cooperating with the Mueller team, Trump’s counsel reminded Flynn that the President knew about his hostile behavior.
Similarly, Trump publicly praised both Paul Manafort and Michael Cohen for not “flipping” at first. Trump even called Cohen personally to remind him to “stay strong” and publicly declaring Cohen would never “flip” on him. Then, once Cohen did begin cooperating with the government, Trump switched to calling him a “rat” and made public suggestions that his family members had committed crimes. Just to be clear, the President of the United States started publicly accusing private citizens of unsubstantiated crimes because one of their family members was a witness in an investigation into the President’s conduct.
While the Mueller report does not reach a definitive prosecutorial decision that involves an indictment of Donald Trump, it did give us an expansive record of the wrongdoings by this President. The report lays out numerous actions that taken by themselves could constitute obstruction of justice, and when added together paint the picture of a President determined to prevent the investigation of his own conduct. The report also gives us a number of remedies, one of which points to the constitutional power of Congress to hold the Executive accountable. I may not be a lawyer yet, but the President’s actions as detailed in this report certainly seem to me to rise to the level of “high crimes and misdemeanors”.
