Friday, April 19, 2019

Echidne Reads the Mueller Report. Volume Two.

The second volume of the Mueller report asks if the president of the United States, one Donald Trump, obstructed or tried to obstruct justice in the investigation of Russian interference.  William Barr, Trump's new attack dog, has told us that Trump did not. 

However, the Mueller report tells otherwise.

To interpret its message properly let's see how the team defined its basic task in the obstruction-of-justice investigation*:

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."'

Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations,see28 U.S.C. § 515;28 C.F.R. § 600.7(a), this Office accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC's constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.

The emphasis is mine.  The investigation, at the outset then, decided not to conclude that Trump was guilty of obstruction, even if he was!  More on that in this quote:

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. 

The emphasis is mine.  To summarize, the report set its task so that the outcome of finding Trump guilty of obstruction of justice was ruled out beforehand! 

So what was the point of the second volume of the Mueller report, you might ask?  Well, perhaps they were hoping to clear Trump completely of all obstruction charges, but were unable to do so:

Fourth, 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, however, we are unable to reach that judgment.

The emphasis is mine, again.  The correct way to interpret that last quote is not how William Barr interpreted it (as giving him the right to be the judge on that question).  Neither is it to assume that Trump wasn't found really guilty or really innocent, but something in-between, as some have interpreted the volume two of the report.

Rather, the Mueller team defined its task in such a manner that Trump could not be found guilty, even if he strangled little puppies on television to intimidate potential witnesses.  And against that background the team could not find him innocent.

Here comes my subjective assessment:  Trump is guilty as hell of obstruction, but many of his reasons for carrying it out are unusual. 

They are based on his fear that his electoral victory wouldn't be seen as the legitimate victory he wanted it to be seen, and they are based on his private belief that being the president of the United States allows you to get away with anything you want, stop any investigation you want stopped, and start any investigation you want started.**  He also doesn't seem to believe in the separation-of-the-powers doctrine, but views the presidency as a dictatorship.

The second volume of the Mueller report discusses several cases where Trump may have obstructed justice, including these:

(a) The President's January 27, 2017 dinner with former FBI Director James Comey in which the President reportedly asked for Comey's loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador;

(b) The President's February 14, 2017 meeting with Comey in which the President reportedly asked Comey not to pursue an investigation of Flynn;

(c) The President's private requests to Comey to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud;

(d) The President's outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI's Russia investigation;

(e) The President's stated rationales for terminating Comey on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI's Russia investigation was a factor in Comey's termination;


(f) The President's reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton.

Trump also considered firing the Special Counsel after Robert S. Mueller was appointed, arguing that he had a conflict of interest:

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed.571 McGahn was at home and the President was at Camp David.' In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counse1.57

On the first call, McGahn recalled that the President said something like, "You gotta do this. You gotta call Rod."574 McGahn said he told the President that he would see what he could do.575 McGahn was perturbed by the call and did not intend to act on the request.576 He and othe radvisors believed the asserted conflicts were "silly" and "not real," and they had previously communicated that view to the President.' McGahn also had made clear to the President that the White House Counsel's Office should not be involved in any effort to press the issue of conflicts.


When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like,"Call Rod, tell Rod that Mueller has conflicts and can't be the Special Counsel."581 McGahn recalled the President telling him "Mueller has to go" and "Call me back when you do it."582

McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.583 To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein.'" 
McGahn recalled that he had already said no to the President's request and he was worn down, so he just wanted to get off the phone.585McGahn recalled feeling trapped because he did not plan to follow the President's directive but did not know what he would say the next time the President called.'
A fascinating aspect in many of the cases the report covers is how Trump's aides ultimately refused to help him in obstructing justice.  Orders were not delivered, letters got astray and so on.  One example:

Two days after the President directed McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. 

On June 19, 2017,the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. 

One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation.

Lewandowski told the President the message would be delivered soon.
However, attempts at obstruction, stopped by others, are still obstruction, in my view.

Another fascinating aspect of Trump's possibly justice-obstructing moves is that so many of them took place in public, in interviews or in the presidential wrath-tweets.  This, by itself, does not stop those moves from serving as obstruction of justice:

Third, many of the President's acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. While it may be more difficult to establish that public-facing acts were motivated by a corrupt intent, the President's power to influence actions, persons, and events is enhanced by his unique ability to attract attention through use of mass communications. And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system's integrity is equally threatened.

Given that the Mueller report limits its scope from the start in such a way that it can't find Trump guilty of obstruction of justice, who is supposed to determine if that is the case or not?  The final pages of the report tell us that the next step is up to the Congress.

* All quotes are from the redacted Mueller report.

** One quote as an example of that:

There is evidence that at least one purpose of the President's conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope.
By the summer of 2017, the President was aware that the Special Counsel was investigating him personally for obstruction of justice. And in the wake of the disclosures of emails about the June 9 meeting between Russians and senior members of the campaign, see Volume II, Section II.G,supra,it was evident that the investigation into the campaign now included the President's son, son-in-law, and former campaign manager. 

The President had previously and unsuccessfully sought to have Sessions publicly announce that the Special Counsel investigation would be confined to future election interference. Yet Sessions remained recused. 

In December 2017, shortly after Flynn pleaded guilty, the President spoke to Sessions in the Oval Office with only Porter present and told Sessions that he would be a hero if he unrecused. Porter linked that request to the President's desire that Sessions take back supervision of the Russia investigation and direct an investigation of Hillary Clinton. The President said in that meeting that he "just want[ed] to be treated fairly," which could reflect his perception that it was unfair that he was being investigated while Hillary Clinton was not. 

But a principal effect of that act would be to restore supervision of the Russia investigation to the Attorney General—a position that the President frequently suggested should be occupied by someone like Eric Holder and Bobby Kennedy, who the President described as protecting the presidents. 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 emphasis is mine.