Mr. Mueller’s “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” to Attorney General Barr was split into two separate parts. Volume II is in its entirety a discussion about President Trump and whether he obstructed justice and if a president can be prosecuted for that crime. Two hundred and eight of the 448 printed pages in the Mueller Report concern obstruction of justice and Trump, and the special counsel never reaches a prosecutorial decision on this question.
He does, however, conclude the president could be prosecuted for obstruction if Justice Department guidelines permitted, as well as identifying ten instances in which Donald J. Trump may have acted to obstruct justice. Unlike the first volume of the report, with its large blackout blocks of redacted information, this section of Mr. Mueller’s analysis is free for all to see.
First, The Conclusion
While Mr. Mueller goes into exhaustive detail on many of the discussed points, his conclusion is a single paragraph. Given the import of the investigation, the report, and its legacy, here is Mueller’s conclusion on obstruction presented in its entirety:
“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 present 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.”
No Traditional Prosecutorial Judgement
Why did the special counsel determine not to make a traditional prosecutorial judgment? Clinton era Justice Department rules still in place state such a prosecution would unconstitutionally violate the separation of powers.
Before President Obama appointed him to be a federal judge, Randolph Moss was Assistant Attorney General in the Office of Legal Counsel at the DOJ. “[T]he Office of Legal Counsel plays a special role within the Department itself. It reviews all proposed orders of the Attorney General and regulations requiring the Attorney General’s approval.” Moss, a Clinton appointee, wrote a significant memo for then-Attorney General Janet Reno called “A Sitting President’s Amenability to Indictment and Criminal Prosecution.” This type of memo functions as an internal law governing if, when, and how a U.S. Attorney may file charges.
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
That is the principal conclusion of the memo, quoted for reference in the Mueller report. These regulations bind the special counsel, and for that reason, he started his appointment with the understanding that no standard prosecutorial decision on obstruction would be made respecting President Trump. Mueller also says his office recognizes a criminal accusation against Trump might take precedence over impeachment proceedings. He doesn’t say the word “impeachment” except in the footnote, though. He says that charges would “potentially preempt constitutional processes for addressing presidential misconduct.”
Mueller did weigh in on other arguments concerning the possible prosecution of a president, including long sections dismissing the notion that when the president exercises his constitutional authority, those decisions cannot be considered obstruction of justice. In plain language, this argument states the president can commit obstruction of justice if he were to bribe a juror for instance or threaten someone with violence for testifying, as those acts are not of his office. But that changes when the he, for instance, exercises his duty to oversee the FBI by firing its director. His motivations for performing these presidential duties are beyond the reach of any criminal obstruction analysis, as the argument goes.
Mr. Mueller dismisses this analysis, provided the regulation of a president’s “exercise of official duties” is “motivated by a corrupt intent to obstruct justice.” While he concluded a criminal prosecution is precluded by DOJ regulations, the special counsel notes a criminal investigation is not similarly restricted. Mueller specifically mentions that a president may be prosecuted under current rules after he leaves office and that his investigation is valuable to “preserve the evidence when memories were fresh and documentary materials were available.”
Roadmap to Impeachment
In his pre-release press conference – called, derisively, a “prebuttal” to the release of the report – Attorney General Barr said that “the report recounts ten episodes involving the president and discusses potential legal theories for connecting these actions to elements of an obstruction offense.” Mr. Mueller’s report goes into significant detail into all ten “episodes,” and lays out a case for why each might be obstruction. Here they are, as identified and titled by special counsel Mueller:
- The Campaign’s response to reports about Russian support for Trump.
– Mueller talks about Trump’s “expressing skepticism” that Russia was behind the DNC hacking, while simultaneously seeking information about further WikiLeaks releases of the stolen material.
- Conduct involving FBI Director Comey and Michael Flynn.
– After he fired National Security Advisor Michael Flynn for lying, Trump, in a meeting with then FBI head Comey, indicated he (Comey) should drop the matter, and not prosecute Flynn for lying.
- The president’s reaction to the continuing Russia investigation.
– This involves Trump’s efforts to have then-Attorney General Sessions “unrecuse” himself from the collusion investigation, as well as his attempts to have intelligence agency heads publicly dispel notions of collusion.
- The president’s termination of Comey.
– This “episode” includes not just the dismissal itself, but statements made by Trump around the time to the press and others, which were false representations of facts surrounding his decision to fire Comey.
- The appointment of a special counsel and efforts to remove him.
– Here the potential obstruction is regarding Mueller’s own appointment, and Trump’s reaction to it – namely, his attempt to see Mueller’s removal for what the Mueller report said the president’s advisors called “meritless” conflicts.
- Efforts to curtail the special counsel’s investigation.
– President Trump met twice with his former campaign manager, Corey Lewandowski, to have him deliver messages to Attorney General Sessions. Trump was trying to get Sessions to denounce the collusion investigation publicly and wanted to use Lewandowski as a middleman.
- Efforts to prevent disclosure of evidence.
– President Trump tried to frustrate the truth of the June 9, 2016 Trump Tower meeting between senior campaign officials, including his son Donald Jr., and a Russian lawyer peddling damaging info on Hillary from being revealed.
- Further efforts to have the Attorney General take control of the investigation.
– Here again, several times in 2017 Trump was after Jeff Sessions to unrecuse himself and assert control over the Russia collusion investigation.
- Efforts to have McGahn deny that the president had ordered him to have the special counsel removed.
– This episode concerns press reports from early 2018 revealing that Trump directed White House Counsel Don McGahn to have Mueller removed. McGahn threatened to resign instead, and Trump did not want that story out, so he directed McGahn to deny the reports.
- Conduct towards Flynn, Manafort, redacted, & Conduct involving Michael Cohen.
– Trump was solicitous towards all when they were sharing information with his defense counsel, not co-operating with the special counsel’s office, and generally defending President Trump. When Cohen and Flynn stopped protecting him, Trump turned against them and even viciously publicly denigrated Cohen.
Will Congress Impeach?
Special counsel Mueller’s report gave a hostile Congress plenty of kindling with which to start a fire. The presentation of the ten episodes includes a detailed analysis of each point, some running nearly 20 pages in length. Given that several Congresspersons advocated strongly for impeaching Trump long before this report or its findings were known, those calls will only grow louder from the progressive left. For Trump’s defenders, the information is likely to have the opposite effect, showing him and his presidency to be the victim-survivors of a fantastic smear that he was a Russian spy.
Will we see more of the same? Will the American national government, nearly paralyzed by the Mueller investigation into Russian collusion with Trump, be paralyzed by an impeachment battle? Any decision to prosecute is a political one. Any decision to impeach the president of the United States of America surely is too.
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