I was going to do a brief analysis of what the Mueller report says about Obstruction, but once I began reading the details, I realized that wasn’t going to be as easy I’d hoped. But, given the significance of the story, and Mueller’s recent appearance in front of Congress, I wanted to at least do an update on the pertinent points the summary contained. I should also preface this by saying I am not a lawyer, so this is entirely a layman’s interpretation of Mueller’s report.
Most significant to me was the amount of time and effort spent explaining the reasoning behind the analysis and the findings in the report- without entirely clarifying what, if anything, had been established. Given the extensive explanation, I thought the information to be important, and most of what I focused on here. Rather than give the ample examples of Obstruction that were also included (which are telling in and of themselves), I focused on a few key aspects related to whether impeachment is warranted.
But first, we should have some context for what we are talking about. I’ve included an explanation of what Obstruction of Justice is, legally, and how it has been applied to sitting presidents in the past. I also included a brief summary of the kinds of obstruction the Mueller report mentioned that could apply in this case.
1. The legal definition for Obstruction of Justice:
“The crime or act of willfully interfering with the process of justice and law especially by influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer or by furnishing false information in or otherwise impeding an investigation or legal process.”
2. From the Mueller Report, on the issue of Obstruction by Trump:
“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 contacts with witnesses with the potential to influence their testimony.”
3. How has the obstruction charge been used in the past?
There were three articles of impeachment brought against Nixon. The first article of Impeachment was for Obstruction of justice.
“Richard Nixon, using the power of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry, to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.”
How do the two investigations compare?
The biggest difference between the Trump and Nixon investigations is that the underlying crime in Nixon’s case was established, while conspiracy with the Russians to rig the election was not. Still, the last sentence of Nixon’s obstruction charge says, “to conceal the existence and scope of other unlawful covert activities.” This could inform how the obstruction charge might be applied to Trump.
Another more minor difference between Nixon and Trump’s investigation was the way in which they both engaged in obstructing the FBI. In Nixon’s case, he and his allies attempted to delay the FBI’s investigation into Watergate. Trump instead made continual attempts to shut the entire investigation down, arguably a much more egregious offense. Though whether that is true under the law, I cannot say.
Several similarities exist between Nixon and Trump and the possible impeachment charge(s) as well. One such similarity is the charge against Nixon of withholding funds from congress for federally approved projects he didn’t agree with. This parallels Trump’s recent efforts to divert funds allocated for other purposes to pay for the border wall. Like Nixon, Trump violated congressional budget agreements that , in Trump’s case, put an end to the month and a half long government shutdown. Trump’s reallocation of funds approved for other purposes to pay for building the wall that congress had denied increased funding for, may have been an act of presidential overreach. While this isn’t an obstruction of justice charge, it is related to another article of impeachment that Nixon faced- Presidential Abuse of Power.
Another notable similarity between the two is how each of them were named in Grand Jury indictments. Nixon was named an ‘un-indicted co-conspirator’ in court documents. Similarly, Trump was named “individual number one” (the President) in Cohen’s Grand Jury indictments, an indictment which resulted in a guilty plea from Cohen. However, this is also a point of some confusion. In Mueller’s summary, it states that prosecutors were not allowed to name Trump as an un-indicted co-conspirator, even in sealed Grand Jury indictments. Yet, Nixon and Trump were both so named in their Grand Jury indictments which resulted from the Special Counsel’s investigation.
After some preliminary research, it seems this might be due to the difference between what a prosecutor can reveal and what a Grand Jury indictment can include, even in its release to the public. According to an article written by law expert Carol C. Lam, former US attorney for the Southern District of California, there is a difference between the two:
“Government prosecutors — and that includes the special counsel and his team, and anyone who works at the U.S. Department of Justice — cannot disclose to Congress or the public any transcripts or summaries of witness testimony before the grand jury. A cautious prosecutor probably also won’t publicly release documents obtained by grand jury subpoena…But the grand jury secrecy requirements of Federal Rule of Criminal Procedure 6(e) do not apply to a grand jury indictment itself, which is a public document. In an indictment, the prosecutor and the grand jury are free to include information obtained in the grand jury.”Carol C. Lam, former US attorney for the Southern District of California
Other key similarities between the Trump and Nixon investigations are related to whether or not you can indict a sitting president. Following the Grand Jury indictments of his aides, Nixon’s prosecutors informed the court they would likely be unable to indict a sitting president due to constitutional rules. This left impeachment the only option. However, when Special Prosecutor Leon Jaworski turned over evidence to Congress, he offered no analysis of the material. Nor did he make recommendations on whether or not to impeach the President. Similarly, while Mueller does include analysis and a conclusion on conspiracy and obstruction, he does not make a determination on the possible Obstruction charge. His reasons were similar to that of Nixon’s Special Prosecutor, Jaworski. Due to Department of Justice rules and constitutional concerns over indicting a sitting president, Mueller and his team determined not to make a recommendation on any indictable offenses.
Obstruction of Justice & How it Applies to Trump
After a lengthy section of the report listing at least ten examples describing Trump’s attempts to obstruct justice, Mueller concluded that obstruction did apply in this case and could be used by congress as grounds for impeachment. Here are some examples of what Mueller concluded would fall under the legal definition of obstruction:
- “The crime or act of willfully interfering with the process of justice and law.”
- “Influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer.”
- “Furnishing false information in or otherwise impeding an investigation or legal process.”
Three Key Findings on Obstruction vs. Collusion:
The biggest difference in question is what the Mueller report concluded about Collusion-and why, versus what they concluded in the case of obstruction. Here are key experts to highlight those differences:
1. “When substantial evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.”
2. “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 (by) the Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
3. “If (the Mueller team) found 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 make that judgment.”
Mueller and his team used the framework of “conspiracy law”, not collusion in their investigation since collusion is not a crime under the law. But, in their detailed explanation on the obstruction of Justice charge, Mueller and his team explain that they “determined not to make a traditional prosecutorial judgment.” Instead, they offered an opinion finding, for the following reasons:
“The Office of Legal Counsel (OLC) has issued an opinion finding 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”.
The report goes on to say that “while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible.” The report further states:
“The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
In other words, Mueller and his team never intended to make a judgment on any indictable crime while the president was still in office, leaving impeachment the only current option, with possible future indictments in mind once he left office. The report also mentions concerns about making a declarative statement on a possible criminal indictment without violating constitutional rights and DOJ rules.
Some ‘Difficult Issues’ to talk about
With the sheer number of examples illustrating Trump’s myriad attempts to thwart the FBI investigation, it’s unlikely that not enough evidence was established for an obstruction charge. Rather, the underlying crime Trump appeared to be obstructing an investigation of was not established. This appears to be one of the “difficult issue” referred to in Mueller’s report:
A second “issue” surrounds Justice Department rules that prohibit prosecutors from naming un-indicted co-conspirators in an indictment.
“The courts struck down with strong language efforts by grand juries to accuse persons of crime while affording them no forum in which to vindicate themselves”.
This seems to further confirm how limited Mueller and his team felt they were in what their assessment could conclude, due to the rules governing the special prosecutor’s role, laid out by the Justice Department, and constitutional concerns.
“Under long-standing Department policy, a President cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view—that too is prohibited…the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing…it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge…from (these rules) we concluded that we would not reach a determination — one way or the other — about whether the President committed a crime.”-excerpts from Mueller’s press conference statement, following the summary of the report made by Attorney General Barr-From the Mueller report
2 Key Phases to Trump’s Obstruction
The summary also identifies two phases to Trump’s obstruction efforts that indicate more “difficulties” in determining no “wrong-doing”. The first phase, before firing James Comey. The second, after his firing when Trump “became aware that his own conduct was being investigated for obstruction-of-justice inquiry”. At which point, Trump began engaging in “public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.”
Eyewitness accounts of Trump’s behavior claim that upon learning he was being investigated by the FBI, Trump purportedly slumped down in his seat and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m f#!%ed,” That’s a strange response from someone with nothing to hide from the FBI. But, reactions like these are what made the conspiracy charge so plausible to investigators. There was clearly something he was trying to cover up, but what that something was remains undetermined since the ‘conspiracy’ concern was not established.
Questions were also raised about if, in fact, it’s considered obstruction if actions occur in the public view. Mueller clarifies this point succinctly:
“Many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws. If the likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system’s integrity is the same.”
To me, it’s clear that sufficient evidence was found of Trump’s attempts to obstruct the FBI’s investigation into his ties with Russia, and possible discovery of other crimes that fell outside the scope of conspiracy to rig the election. But, Mueller and his team were limited by the scope of what they could investigate, or reveal without directly implying grounds for an indictment, based on DOJ rules. Further, that by even hinting at a possible indictment would violate the same constitutional rights of due process and Justice department rules that prevented them from indicting a sitting president, which I believe is why this passage is so murky.
I fully concede that my assessment may not be legally correct. I am also not a mind reader, so I can’t say with certainty that this was what Mueller and his team were inferring. But, given what Mueller included in his press conference statements, and reaffirmed during his congressional hearing, it seems a fair assessment of their intent.
Types of Obstruction that Apply to Trump
The summary concludes with an explanation of the two types of obstruction that would apply to obstruction if congress were to conduct an impeachment investigation and trial. The Mueller team determined that both statutory and constitutional defenses could be applied, meaning either or both were applicable to their findings on Trump’s actions to obstruct the FBI investigation, or for other impeachable offenses.
More specifically, the Mueller report states that, “Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.” and that the president cannot use his Article II powers to give himself immunity.
“The conclusion is that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no one is above the law.”
-In other words, congress, unlike special counsel, can totally impeach the president on grounds of obstruction, based on what Mueller found and documented in his summary report on Trump’s Obstruction of Justice.