The Mueller Report: I read it for you, but you should read it yourself. pt. 4

The President’s Efforts to Remove the Special Counsel

Of all the consequences of firing Director Comey, the worst from Trump’s perspective was the appointment of a Special Counsel to lead the investigation into Russian subversion of our electoral process. This was, of course, inevitable, given the gravity of the question of the integrity of our elections, the lack of trust most Americans had that the President would address the problem in an honest and impartial manner, the deep concerns of most of the nation’s law enforcement and counterintelligence agencies, and the fact that almost everyone else was either a potential suspect or a witness at this point. This was totally predictable and unavoidable in the view of anyone with any political sense or understanding of how American government works, but it caught Mr. Trump completely by surprise. The report states: “According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, 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.’” Given that Clinton survived a Special Prosecutor with far more sweeping powers and far less neutrality than Mueller had, this seems rather melodramatic. He then became angry at Attorney General Sessions for not protecting him. I have to confess, I have to agree to a point, given that Sessions apparently recommended firing Comey and the appointment of a Special Prosecutor to take over the investigation after that was as predictable as a third Sharknado movie.   Several witnesses report that Trump was in a rage, and he demanded Sessions resign. Sessions agreed, wrote out his resignation letter and handed it to Trump. Trump decided let Sessions stay as AG, but refused to return the letter until other advisors pressured him over several days to do so.

All of this seems understandable given Mr. Trump’s well-known temper and political ignorance, and by itself not very significant. His later efforts to hit back at the Special Counsel before he even began his work, however, were more questionable. Trump began pushing for Special Counsel Mueller to be removed, alleging conflicts of interest. His own advisors told him his claims were, in Bannon’s words, “ridiculous and petty” and Department of Justice ethics officials examined the question and found no cause for concern. Despite this, Trump pressured White House Counsel McGahn to push Deputy AG Rosenstein to fire Mueller over these alleged conflicts. McGahn pushed back, telling Trump that firing Comey wasn’t even his “biggest exposure” compared to his “other contacts” and his efforts to end the Flynn investigation. The report goes on to describe increased pressure from Trump to fire Mueller, and apparent efforts by various advisors and staff to derail these efforts by leaking them to the press, refusing to cooperate and so on. McGahn even prepared to resign rather than participate in firing Mueller, though ultimately he was talked out of resigning by Steve Bannon and Reince Priebus. In the end McGahn did not resign, and Trump did not ask him the next day whether he had instructed Rosenstein to fire Mueller as Trump had wanted.

The Special Counsel considered these facts to be relevant to determining whether this behavior constitutes obstruction of justice:

  1. Obstructive Act: The report considers whether firing Mueller would have naturally delayed, chilled or otherwise impeded any further investigation. After all, firing Mueller would probably have meant he was replaced, but even so the investigation could have been crippled. Therefore, the proposed firing could have obstructed the investigation. It is also crucial to consider whether Trump actually ordered Mueller fired, or merely suggested the DOJ investigate these alleged conflicts of interest. Ultimately, the report rejects Trump’s denials that he ordered McGahn to order Rosenstein to fire Mueller; not only did it find McGahn a more credible witness than Trump with no motive to lie, but his other actions supported his story, other witnesses corroborate parts of it, and DOJ was already well aware of the allegations Trump was making and had concluded they were baseless. So Mueller’s office found Trump’s claim that he was merely making a suggestion that they look at these supposed conflicts to be unbelievable, while McGahn’s claim that Trump told him “Mueller has to go” likely true.[1] Thus we have an attempt to perform an act that would be likely to impede further investigation; this attempt was not carried out only because McGahn refused to do as ordered, and Mr. Trump was either persuaded to drop the matter or otherwise lost interest in it, as he lost interest in firing Sessions.
  2. Nexus to an official proceeding: By this time Mr. Trump knew he was under investigation; he had been warned by McGahn of his legal exposure, the Special Counsel’s office had informed the White House that they’d be interviewing witnesses to Trump’s interference in Comey’s investigation, and Trump himself tweeted that he was under investigation. Therefore, he knew there was an official investigation which could be crippled or completely derailed by firing the Special Counsel, yet he sought to do so anyway.
  3. Intent: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked… to reports that the President was being investigated for potential obstruction of justice.” From his immediate “I’m fucked” to his pushing previously refuted allegations against Mueller and finally to his ordering Mueller be fired, it is clear that he was primarily concerned with protecting himself; and his later denials of having ordered McGahn to fire the Special Counsel suggest he knew the order could be seen as improper.

Once again, the report cites the existence of all three essential ingredients of an obstruction of justice: the act itself, the investigation to be obstructed, and the intent to do so. Mr. Trump had the desire to end the investigation and discussed “knocking out Mueller” by alleging conflicts of interest which his own people described as “silly” and “not real.” The only reason he did not “knock out Mueller” was that his own staff and advisors, realizing the enormity of his proposed actions (McGahn described it as “crazy shit”) refused to cooperate. Attempted obstruction of justice, like attempted murder, is still prosecutable; whether this act does indeed rise to the level of criminality is something that can only be determined, says Mueller, by an impeachment hearing before Congress, where all evidence can be presented and the President can offer his defense against the charges.

[1] Of course too, McGahn answered questions under oath and in person; Trump has refused to do so.

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