NO OBSTRUCTION? NO WAY

[This post first appeared on May 1, 2019 at Dan Rather’s News & Guts]

This is the third in a series of posts by Steven J. Harper, creator and curator of the Trump-Russia Timeline, on the Mueller Report. The first two installments are available here and here.

Start with these undisputed facts: A foreign adversary launched a sophisticated attack aimed at helping Donald Trump win the presidency. His campaign welcomed the help and he won. His chosen deputy attorney general then appointed a special counsel to investigate the attack. Repeatedly and often successfully, Trump tried to undermine that investigation.

That’s not a narrative of innocence. It’s the narrative of obstruction that seeks to hinder proof of potential underlying crimes. So not only is Trump’s claim of “no obstruction” false, but his previous actions also further undermine ongoing claims of “no collusion” and “total exoneration.”

Special counsel Robert Mueller’s evidence would have put anyone other than a sitting president in handcuffs. Mueller acknowledges the possibility that after Trump leaves office, it still might.

The Facts

The obstruction volume of Mueller’s report opens with “The Campaign’s response to reports about Russian support for Trump,” which summarizes the Trump team’s repeated lies about its interactions with Russia. Ten categories of evidence then document Trump’s efforts to interfere with investigations into those contacts.

“Conduct involving FBI Director Comey and Michael Flynn”: The FBI caught Trump’s national security adviser lying about his Russia contacts and he resigned. Trump then pressured Comey to “let Flynn go.”

“The President’s reaction to the Russia investigation”: Trump pressured Attorney General Jeff Sessions to “unrecuse” himself from the investigation. He asked the directors of national intelligence and the CIA to help dispel suggestions that Trump had connections to Russian election interference. And he pushed Comey to “lift the cloud” of the investigation by publicly exonerating Trump.

“The President’s termination of Comey”: Trump lied to the public about his reasons for firing Comey, but then privately told Russians in the Oval Office that he “faced great pressure because of Russia” (which Comey’s firing had “taken off”). Eventually, he admitted on national television that his motivation was “this thing with Trump and Russia.”

“The appointment of a Special Counsel and the efforts to remove him”When Sessions told Trump about Mueller’s appointment, “the President slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’” He blamed Sessions for not protecting him, began a relentless public and private campaign to undermine the investigation, and asked White House counsel Don McGahn to have Mueller removed.

“Efforts to curtail the special counsel’s investigation”: Trump told former campaign manager Corey Lewandowski to tell Sessions that he should limit Mueller’s probe to investigating future elections. Then Trump told chief of staff Reince Priebus to obtain Sessions’ resignation.

“Efforts to prevent public disclosure of evidence”: Trump directed aides not to publicly disclose emails about the June 9, 2016 Trump Tower meeting between senior campaign officials and Russians. The emails promised derogatory information on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” When the press broke the story in early July 2017, Trump dictated Donald Trump Jr.’s misleading response about the meeting’s purpose. Trump’s personal lawyer denied that Trump played any role in drafting the statement.

“Further efforts to have the Attorney General take control of the investigation”: Repeatedly, Trump asked Sessions to “unrecuse” himself from the Russia investigation and to “take a look” at investigating Clinton.

“Efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed”: Following accurate news reports that Trump had told McGahn to have Mueller removed, Trump told McGahn to deny the story.

“Conduct towards Flynn, Manafort and [Redacted]“: Following Flynn’s resignation, the FBI continued to investigate his activities, and Trump asked advisers to encourage Flynn to “stay strong.” After Flynn began cooperating with investigators and withdrew from a joint defense agreement with Trump, Trump’s lawyer pressed for information anyway. Flynn’s lawyers properly refused. In response, Trump’s lawyer said he would make sure Trump knew Flynn’s actions reflected “hostility” toward Trump. Separately, while Manafort’s jury was deliberating, Trump publicly said Manafort was being treated unfairly, praised him, and dangled the prospect of a pardon. (Mueller’s discussion of Trump’s conduct toward a third person — likely Roger Stone— is redacted because it involves an ongoing Justice Department matter.)

“Conduct involving Michael Cohen”: When Cohen lied to Congress about Trump’s involvement in Trump Tower Moscow negotiations during the 2016 campaign, Trump praised him. But when Cohen began cooperating with the government, Trump publicly called him a “rat” and suggested that Cohen’s family members had committed crimes.

So why isn’t Trump awaiting trial? The answer is that Mueller didn’t think indicting Trump was an option.

No “Traditional Prosecutorial Judgment”

For reasons that have nothing to do with Trump’s false self-proclamation of exoneration, Mueller did not allow himself even to consider whether Trump had committed a crime:

“[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” (emphasis supplied)

Instead, Mueller deferred to the Office of Legal Counsel (OLC) finding that a sitting president is not subject to indictment. But as Mueller explains, “The OLC opinion also recognizes that a President does not have immunity after he leaves office.” So Trump is not out of the prosecutorial woods forever.

“No Person Is Above the Law”

Mueller conducted “a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” If that evidence had cleared Trump, Mueller ‘s team would have said so. But it didn’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… Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Ultimately, Mueller’s report is really a referral to Congress for further action based on its role in “addressing presidential misconduct”:

 “[W]e concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.”

“The conclusion 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 person is above the law.”

But regardless of what House Democrats do next, the Trump/GOP strategy is set: Falsely claim “no collusion,” “no obstruction,” and “exoneration” — and attack anyone who says otherwise. Trump survives on lies, intimidation, and the culture they create. And that may be the most important lesson of Mueller’s investigation.

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