Mueller had everything he needed to charge Trump with obstruction, but didn’t
If Robert Mueller wanted to charge President Donald Trump with obstruction, he found all he needed to do it.
And he found it on multiple fronts. But he didn’t make a decision on whether to bring the case.
Mueller’s report Thursday walked through excruciating detail of evidence in the obstruction of justice investigation and legal analysis, hitting over and over again how prosecutors had enough to meet the legal threshold for a case against Trump.
The special counsel examined multiple incidents for potential obstruction. It showed how Trump’s actions crossed the threshold for a case when Trump confronted former FBI Director James Comey to “let” national security adviser Michael Flynn go; when Trump fired Comey; when Trump directed his former White House counsel Don McGahn to shut down Mueller; and when Trump tweeted about his former campaign chairman Paul Manafort’s charges as he headed to trial. In each of these situations, Mueller found evidence that Trump took steps to harm an investigation, had the ability to harm an investigation and had a personal motivation to harm the investigation.
The decision not to charge Trump with a crime means the President and his allies can claim a clean victory following the nearly two-year probe, but the evidence Mueller gathered and that Congress can still investigate suggests that conclusions about the President’s actions could still come.
‘Let Flynn go’
The first time Mueller explains a circumstance where Trump could have obstructed justice, he goes the distance.
Trump urged Comey to “let Flynn go” – three times phrased differently in quick succession, Mueller notes – and it was clear the President sought to end the FBI investigation into Flynn, Mueller wrote. That checked the box for the first part of the three-part legal test for obstruction.
In the second part of the legal test, Mueller got there as well, finding evidence that Trump realized Flynn could face criminal prosecution for lying at the time he had the conversation with Comey.
As for a personal stake in the investigation, the third part of Mueller’s legal test, Mueller didn’t find evidence that Flynn possessed information damaging to the President, leaving Trump’s incentive for stopping the investigation not clear in that aspect. Yet Trump still had a personal stake in the investigation – because he was motivated by how the Russia probe’s findings could reflect on his electoral college election win.
Prosecutors heard from multiple witnesses that Trump “viewed the Russia investigations as a challenge to the legitimacy of his election,” Mueller wrote.
Mueller noted that he found Comey’s retelling of events to the public to be truthful – and not Trump’s.
Mueller also found evidence that firing Comey in May 2017, which prompted Mueller’s appointment as special counsel, had the potential to hurt the investigation.
Trump at that time, like before, knew a prosecution of Flynn could be coming, and was motivated by Comey’s unwillingness to publicly that say Trump wasn’t under investigation.
In his legal analysis, Mueller fully refutes Trump’s claim he had fired Comey for doing a bad job, specifically in how the FBI director handled the end of the investigation into Hillary Clinton’s email. That was not “supported by the evidence,” Mueller wrote.
Some of the evidence “indicates that the President wanted to protect himself from an investigation into his campaign,” Mueller added.
Directing his lawyer
The Mueller team is quite clear on Trump’s multiple orders to McGahn to rid him of Mueller. Trump met every legal test for obstruction in this situation, too, Mueller found.
“As with the President’s firing of Comey, the attempt to remove the special counsel would qualify as an obstructive act if it would naturally obstruct the investigation” and the grand jury’s work, the report states.
Trump directed McGahn to have Mueller fired – a step that would clearly impede the special counsel’s office work – but McGahn wouldn’t do it.
Like Comey, McGahn was a credible witness, while Trump was not, Mueller found. “You gotta do this. You gotta call Rod,” Trump told McGahn, and discussed “knocking out Mueller” on the phone with McGahn in a May 2017 call, the report said.
Finally, on Trump’s intent, there was “substantial evidence” Mueller said he found about how the President wanted to fire Mueller because he was being investigated for obstruction.
Mueller also outlined how Trump attempted to put pressure on Michael Flynn, Paul Manafort, Michael Cohen and another unnamed person, whose name is withheld because of an ongoing investigation, from giving information against him.
If Mueller had brought a case in this situation, the one regarding the President’s public comments as Manafort went to trial that could have prejudiced a jury would have been strongest, according to the report.
Manafort was convicted by a jury on eight financial crimes unrelated to his work for Trump. He then pleaded guilty on additional charges related to his Ukrainian lobbying, and agreed to cooperate with investigators, before lying to them repeatedly.
“Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government,” Mueller wrote.
“Some evidence supports a conclusion that the President intended, at least in part, to influence the jury,” the report added, before acknowledging the President he may have felt genuinely bad for his former campaign chairman on trial.
Role of new Attorney General William Barr
Mueller’s own words over the 182-page analysis of the obstruction investigation refute the attorney general’s own statements that Mueller found “evidence on both sides of the question” and could not decide on “‘difficult issues’ of law and fact” in the obstruction question.
In all, the evidence in many circumstances Mueller looked at fell in favor of a case, and Mueller outlined his opinions in the report on the “difficult issues” that the Justice Department would have to resolve if Mueller had chosen to prosecute.
At times, Trump was motivated to obstruct the Russian investigation. At other times, Trump wanted to obstruct the obstruction of justice investigation Mueller was conducting into him.
The pieces were all there. Yet Mueller didn’t act.
Attorney General William Barr and Deputy Attorney General Rod Rosenstein chose not to charge the President with an obstruction crime.
“Although the deputy attorney general and I disagreed with some of the special counsel’s legal theories, and felt that some of the episodes examined did not amount to obstruction as a matter of law, we did not rely solely on that in making our decision,” Barr said at a press conference Thursday morning.
“Instead, we accepted the special counsel’s legal framework for purposes of our analysis, and evaluated the evidence as presented by the special counsel in reaching our conclusions,” he added.
Prosecuting a sitting president and DOJ rules
That the evidence wasn’t conclusive wasn’t at the crux of Mueller’s decision not to prosecute, according to his report. The special counsel, even if he had wanted to, couldn’t prosecute a sitting president.
“This Office accepted (an internal Justice Department) legal conclusion for the purpose of exercising prosecutorial jurisdiction,” Mueller wrote, citing the Office of Legal Counsel policy. Even setting OLC aside, Mueller added, “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.”
Separately, Mueller disagreed with Barr’s previous assertion that the President as chief executive isn’t capable of obstructing justice – another important constitutional question when they looked at potential cases. Mueller also fully disagreed with legal defenses Trump’s lawyers presented when trying to sway the special counsel against charging the President, the report noted. So, would prosecutors have brought an obstruction case if Trump hadn’t been President?
“Here’s the problem,” CNN analyst Elie Honig, a former federal prosecutor said. “Yes, but they’re not going to charge the President.” “It’s a strong obstruction case.”