How to Get Away With Obstruction of Justice By Matt Ford for The New Republic 9-11 minutes

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How to Get Away With Obstruction of Justice
By Matt Ford
9-11 minutes

The Justice Department has released special counsel Robert Mueller’s 448-page report and titled it, dryly, “Report On The Investigation Into Russian Interference In The 2016 Presidential Election.” A more accurate title would be “A President’s Guide to Obstructing Justice and Getting Away With It.”

Though partially redacted in places, the report offers a thorough and bracing account of President Donald Trump’s actions before and after the 2016 presidential election. The first half considers whether he colluded with Russians to help his candidacy, while the latter considers whether the president interfered with the collusion investigation—which is to say, whether he obstructed justice. Neither question is answered decisively. Mueller didn’t find evidence of a criminal conspiracy, but provided substantial evidence that Trump’s campaign sought the Russians’ help in 2016. He left the obstruction decision to Attorney General William Barr but provided substantial evidence that Trump at least attempted to obstruct justice.

Over the course of the 182-page section on obstruction, Mueller weaves a semi-chronological narrative of Trump’s responses to the Russia investigation and its offshoots. He focuses on ten specific instances where Trump may have obstructed justice. In some of those cases, such as the president’s efforts to mislead the public about the 2016 Trump Tower meeting, Mueller notes that the available evidence fell short of what would be required to prove obstruction of justice under federal law.

In other cases, Trump’s tendency to offer a whirlwind of rationales for his actions made it hard at times for investigators to conclusively establish his motives. “Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia,” Mueller wrote. “Other evidence, however, indicates that the president wanted to protect himself from an investigation into his campaign.” Since the obstruction statute requires prosecutors to prove a “corrupt intent,” those plausible alternatives could undermine a criminal prosecution.

In still other cases, however, Mueller is unambiguous that the president did something wrong. Perhaps the clearest example is the July 2017 episode where Trump ordered Don McGahn, the White House counsel at the time, to fire Mueller. Trump was well aware that he was crossing a line: McGahn’s shorthand notes recount that he warned the president at one point that carrying out his orders would be “another fact used to claim obst[ruction] of just[ice].” When Trump insisted, McGahn refused to carry out the order, Mueller says, “for fear of being seen as triggering another Saturday Night Massacre.” Only then did Trump not pursue the matter further.

Mueller’s analysis of the evidence clearly points toward an attempt to obstruct justice in that circumstance. He established that Trump intended for McGahn to tell the Justice Department to remove Mueller, and that he did so out of concern that Mueller was looking into his firing of FBI Director James Comey. “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,” Mueller wrote.

The special counsel ultimately suggested that, taken together, Trump’s actions amounted to an abuse of the presidency. “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,” he wrote. “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 contact with witnesses with the potential to influence their testimony. Viewing these acts collectively can help to illuminate their significance.”

What’s more, Mueller even briefly addressed the prospect of charging a defendant with attempted obstruction of justice. “Under general principles of attempt law, a person is guilty of an attempt when he has the intent to commit a substantive offense and takes an overt act that constitutes a substantial step towards that goal,” Mueller explains in a two-paragraph analysis. He also quotes a recent ruling by the Eleventh Circuit Court of Appeals holding that prosecutors “need not prove that the due administration of justice was actually obstructed or impeded” when prosecution attempts to obstruct justice.

He also suggests that Trump’s efforts fell short only because his subordinates repeatedly disobeyed his instructions. “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,” he wrote. “Consistent with that pattern, the evidence we obtained would not support potential obstruction charges against the President’s aides and associates beyond those already filed.” That conclusion strangely elides whether the president’s efforts themselves constituted an attempt to obstruct justice.

So why did the special counsel not follow through with charges? It’s possible that he thought that indicting the president for an attempted crime wouldn’t be tenable on its own. Mueller’s original mandate was to determine whether the Trump campaign illegally conspired or coordinated with the Russian government during the 2016 presidential election. His inquiry there fell short of finding a smoking gun.

“Although 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,” he wrote, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Mueller also noted that prosecuting a sitting president brings its own share of legal and constitutional challenges.

But another possibility is that Mueller intended for Congress itself to decide whether Trump’s actions warranted impeachment. Mueller doesn’t say, implicitly or explicitly, that he wants the House to begin those proceedings. What he does is lay out a clear case that the president did something wrong. That’s a slight stretch of his mandate. Juries find defendants guilty or not guilty of an alleged crime; they do not find people innocent of it. Federal prosecutors are supposed to prosecute criminal offenses if they can prove them in a court of law, and do nothing if they can’t. Mueller deviated from that approach. In doing so, he seems to imply that the criminal-justice system isn’t the appropriate remedy for the situation at hand.

“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,” he wrote. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Some of the president’s allies in the legal world, including Rudy Giuliani and Alan Dershowitz, have argued that the president can’t be charged with obstruction of justice for acts related to the exercise of his constitutional powers. But the special counsel goes to unusual lengths to rebut that analysis. The report closes with 23 pages devoted to explaining that presidents can indeed commit obstruction of justice under current federal law. Much of that analysis focuses on the separation of powers and Congress’s role in safeguarding criminal investigations.

The president has the constitutional duty to faithfully execute the laws, Mueller explains. But, he adds, Congress has its own power to write laws that criminalize obstruction of justice to ensure the proper functioning of the criminal-justice system, and that those prohibitions can also apply to presidents. “A preclusion of ‘corrupt’ official action is not a major intrusion on Article II powers,” Mueller wrote. “For example, the proper supervision of criminal law does not demand freedom for the President to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment.”

Again, at no point does Mueller actually state that Congress should begin impeachment proceedings. What he did instead was lay out in thorough detail how Trump repeatedly tried to use his constitutional authority to obstruct a federal criminal investigation, how most of those efforts only failed because of Trump’s lack of nerve or his subordinates’ resistance, and how criminal prosecution is an ill-fitting remedy for these abuses. While it’s up to the American people to draw their own conclusions from those facts, they seem to all point in one direction.