The Mueller investigation was authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation[.]”
That became an investigation with two parts: the first on a possible criminal conspiracy between the Russian government and the Trump Campaign and the second on the president’s obstruction of justice.
First, Mueller could not establish any criminal conspiracy between the Russian government and the Trump Campaign. Second, Mueller appears to have found multiple acts of criminal obstruction by the president, but refrained from making that statement explicitly.
Mueller believed himself constrained by Department of Justice policy, under which the sitting president cannot be indicted. He explains that he accepted the conclusion of the Office of Legal Counsel (OLC) that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”
Mueller believed a criminal investigation was permissible under the OLC opinion, because the president could be prosecuted after he left office and because other individuals might be prosecutable for obstruction. Mueller’s Report set out to investigate and report the conclusions of its investigation “to preserve the evidence when memories were fresh and documentary materials were available.” The Report is the product of that investigation.
However, because the OLC opinion forbade prosecution of the president, he “determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Mueller’s concerns in avoiding the conclusion that the president committed crimes are prudential: “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought.” Ordinary defendants can clear their name in court. The president cannot.
However, the Mueller Report also states that if they could conclude that the president had not committed obstruction of justice, they would say so: “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.”
That is what Mueller’s prudence amounts to: We cannot say that the president is guilty. But he’s not not guilty.
Mueller nonetheless proceeds to outline why the president is not not guilty. It sets the president’s conduct against the criminal standard in eleven episodes of obstruction:
- The Campaign’s response to reports about Russian support for Trump.
- Conduct involving FBI Director Comey and Michael Flynn.
- The President’s reaction to the continuing Russia investigation.
- The President’s termination of Comey.
- The appointment of a Special Counsel and efforts to remove him.
- Efforts to curtail the Special Counsel’s investigation.
- Efforts to prevent public disclosure of evidence.
- Further efforts to have the Attorney General take control of the investigation.
- Efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed.
- Conduct towards Flynn, Manafort, [redacted, probably Stone].
- Conduct involving Michael Cohen.
Mueller sets out the three elements of the criminal offense of obstruction. Essentially, the offender must commit an obstructive act, his obstruction must be connected to an official proceeding, and he must have a corrupt intent.
Mueller then concludes that there was substantial evidence to support all three elements in four episodes, and that evidence could support them in a further four episodes, and perhaps more. Mueller only clears the president of the obstruction for one episode.
Let’s take one of the clearer cases: the president’s efforts to fire Mueller. After the Acting Attorney General appointed Mueller, the president directed White House Counsel Don McGahn to remove Mueller. McGahn refused and offered to resign. The president did not follow up.
The Report has an entertaining narrative – this is where the president says, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked,” but it also has Priebus telling Sessions that the resignation letter he sent the president was a “shock collar” and that he would have “DOJ by the throat” – but I will excerpt only the conclusions of Mueller’s analysis:
a. Obstructive act. As with the President’s firing of Comey, the attempt to remove the Special Counsel would quality as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. […]
A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. […] Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed. […]
b. Nexus to an official proceeding. To satisfy the proceeding requirement, it would be necessary to establish a nexus between the President’s act of seeking to terminate the Special Counsel and a pending or foreseeable grand jury proceeding.
Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury. […]
c. Intent. 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. […]
That is how the Report reads: After setting out the facts, it applies the relevant legal standards. Although the Report never states “the president committed criminal obstruction of justice,” it nonetheless finds substantial evidence that he committed criminal obstruction of justice in this instance and others.
Now we have to decide what to do with that information.