The Weekly Sift

Mueller gave his reasons for not reaching a conclusion on obstruction. Those reasons don’t apply to the rest of us.

---

I draw three main conclusions from the Mueller Report:

• Russia interfered in the 2016 presidential campaign for the purpose of electing Donald Trump.
• While Trump and his campaign welcomed and at times even encouraged Russian help, the evidence the investigation collected doesn’t support a charge of criminal conspiracy, and the evidence isn’t sufficient to charge any individual connected to the Trump campaign (officially or unofficially) with acting as a Russian agent.
• In view of the Justice Department guideline that a sitting president can’t be indicted, Mueller assembled evidence about the instances where Trump may have obstructed justice, but left the ultimate judgment to people in a position to take action: Congress or post-Trump-administration prosecutors (and not Bill Barr).

Since these are not at all the conclusions Attorney General Barr put forward in his four-page summary or his introductory press conference, I am led to a fourth conclusion: Barr has been acting as a personal attorney for Trump, and not as the attorney general of the United States. [1]

No judgment about obstruction. The third conclusion is the one most distorted by Barr, so it needs the most explanation. Here’s what the report says in the introduction to Volume II, which discusses Trump’s possible obstructions of justice:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. … 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.

On the other hand, if the evidence clearly showed that no crime was committed — that would be the “total exoneration” Trump keeps announcing — Mueller had been prepared to say that. Unfortunately, he couldn’t.

[I]f 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, 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.

In addition to the facts investigation has assembled, convicting Trump of obstruction of justice would depend on judgments about his intent as well as legal judgments about when the official actions of a president can be considered obstruction. Mueller has opinions about those subjects and expresses them in the report, but is not comfortable drawing all of that into a conclusion that could not be tested in court for the rest of the Trump administration.

Nothing in the report suggests that he is kicking the decision upstairs to the attorney general, as Barr put forward.

Actions that might be considered obstruction. The report examines ten incidents as possible obstruction-of-justice counts. [2] In each case, Mueller analyzes the three factors that would need to be established:

• an obstructive action (which need not necessarily succeed),
• some connection (“nexus”) to an official proceeding
• corrupt intent

Some of the ten, Mueller dismisses as not chargeable. For example, Trump’s effort to keep the content of the Trump Tower meeting from becoming public, including his dictation of a false statement that the meeting concerned Russian adoptions rather than a Russian offer of “dirt” on Hillary Clinton: It’s not obstruction because Trump was hiding the truth from the press and the public, not from an official investigation.

Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel.

Trump asking Comey to let Flynn go. Mueller’s analysis seems to confirm that each of the three factors is present here, but the case hangs on believing James Comey’s version of his conversations with Trump rather than Trump’s version. However, it’s not a pure he-said/she-said: “substantial evidence corroborates Comey’s account”.

Trump’s reaction to the continuing Russia investigation. This includes pressuring Jeff Sessions not to recuse himself, and pressuring the DNI, CIA director, and NSA director, as well as Comey, to make public statements clearing him of involvement with Russia.

While these actions are “relevant to understanding what motivated the President’s other actions towards the investigation”, they don’t seem chargeable in themselves because “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation”.

Firing James Comey. While Trump’s “stated rationales for why he fired Comey are not similarly supported by the evidence”, this action also was arguably motivated by Comey’s refusal to tell the public that Trump wasn’t under investigation, rather than by a desire to shut down the investigation. [3]

In fact, Comey’s firing didn’t shut down the investigation, and could not have been expected to. (Steve Bannon had told Trump that he could fire Comey, but he couldn’t fire the FBI.) It would also be obstruction if Trump intended Comey’s firing to intimidate the next FBI director, but that also has not been proved.

Attempts to remove the Special Counsel. Trump denies that he ordered Don McGahn to instruct Rod Rosenstein to fire Robert Mueller (and McGahn ignored him anyway). [4] But “substantial evidence” supports the conclusion that he did.

the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.

That sounds like a yes to me. At this point Trump knew he was under investigation for obstruction of justice, at the very least. So the second box is checked as well, and checked for all subsequent incidents.

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

So this count is a good candidate for an obstruction of justice charge. The fact that McGahn didn’t do what the president told him to do saves McGahn from being guilty of obstruction, but not Trump.

Attempts to curtail the scope of the investigation. Two days after telling McGahn to get Mueller fired, Trump was telling Corey Lewandowski to instruct Jeff Sessions to unrecuse himself and instruct Mueller to limit his investigation to “election meddling for future elections”. (Lewandowski likewise didn’t deliver Trump’s message. Instead he passed it on Rick Dearborn, who didn’t deliver it either.)

The three factors are all present here. This is another good candidate.

Further attempts to get Sessions to unrecuse and take control of the investigation. This count hangs on whether Trump believed Sessions would impede or restrict the investigation if he were back in charge of it.

A reasonable inference from those statements and the President ‘s actions 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 .

The charging decision would revolve around whether a “reasonable inference” is strong enough.

Ordering McGahn to deny that Trump told him to fire Mueller. When the New York Times broke the story about McGahn being ordered to get Mueller fired, Trump wanted McGahn to deny it, and to write a letter “for our records” denying it.

The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.

… 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.

The fact that Trump wanted a letter for the files indicates that this wasn’t just a press strategy.

Another good candidate.

Attempting to affect the cooperation or testimony of Michael Flynn, Paul Manafort, and somebody else whose name is redacted. This has to do with the repeated hints that Trump might pardon people who stand by him. His public comments also might have been intended to sway the jury in Paul Manafort’s trial. In Flynn’s case, the broadest hints came primarily through Trump’s lawyers, so it’s not possible to know whether that message came from Trump himself.

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.

That would be witness tampering, which is a type of obstruction.

Attempts to influence Michael Cohen. This is similar to the Flynn/Manafort stuff in the last section, but moreso.

We gathered evidence of the President ‘s conduct related to Cohen on two issues: (i) whether the President or others aided or participated in Cohen’s false statements to Congress, and (ii) whether the President took actions that would have the natural tendency to prevent Cohen from providing truthful information to the government.

On (i), Mueller says that the evidence does not establish that Trump “directed or aided” Cohen’s false testimony. On (ii), the logic is similar to Flynn/Manafort, but also included Trump accusing Cohen’s wife and father-in-law of committing crimes.

The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating. … the President’s suggestion that Cohen ‘s family members committed crimes happened more than once , including just before Cohen was sentenced (at the same time as the President stated that Cohen “should, in my opinion, serve a full and complete sentence”) and again just before Cohen was scheduled to testify before Congress. The timing of the statements supports an inference that they were intended at least in part to discourage Cohen from further cooperation.

In other words, witness tampering.

Summary of obstruction incidents. By my count, six of the ten incidents look like obstruction of justice. The other four may not contain all the elements of obstruction, but they lend themselves to an overall pattern of obstruction.

Although the events we investigated involved discrete acts- e.g., the President’s statement to Comey about the Flynn investigation , his termination of Comey, and his efforts to remove the Special Counsel – it is important to view the President ‘s pattern of conduct as a whole. That pattern sheds light on the nature of the President ‘s acts and the inferences that can be drawn about his intent.

And the pattern is the point. In some of the six obstructions, you might decide that the “substantial evidence” Mueller cites is not beyond reasonable doubt. But when you see the whole list, reasonable doubt vanishes. The President obstructed justice. [5]

---

[1] ] As Joyce Vance put it: “the President’s lawyer, not the People’s lawyer”. The notes of sadness, disappointment, and puzzlement in her voice are worth listening to. She “looked up to and admired attorneys general” during her 25 years in the Justice Department, which included Barr’s term as AG under the first President Bush. “To hear an attorney general lie from the podium at the Justice Department about the contents of a report that had been done on a serious criminal case is so stupefying.”

Barr raises the same question as John Kelly, Kirstjen Nielsen, and countless other administration officials: You had a respectable career and a solid reputation; why are you lighting it on fire for this unworthy leader?

[2] If you want a more detailed description of each incident, look here, or in the report itself. I’ve chosen to focus on Mueller’s obstruction reasoning.

[3] This was an extraordinarily petty reason for a president to tear down the norms of FBI independence that previous administrations had built up, but norms are not laws.

[4] This is a pattern in many of the incidents Mueller examined: Trump ordered a subordinate to do something illegal, but the subordinate didn’t do it.

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. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President ‘s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so. 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.

This is also a pattern we can see elsewhere in the administration: in immigration policy, for example. Trump wants people who will break the law for him. You have to figure that eventually he’ll find some, if he hasn’t already.

An attempt to obstruct an investigation need not succeed in order to be illegal. And if it does succeed, and the underlying crime is covered up, you run into the opposite argument, which Trump’s people are also making: How can it be obstruction if you don’t know of any crime for the investigation to find? Between the horns of that dilemma, the crime of obstruction disappears completely.

An example of the opposite horn: We’ll never know what crimes Paul Manafort might have revealed if he had actually cooperated.

[5] The next question is: What should be done about it? I’ll take that up in my next post, which should be out in a few hours.