The Mueller Report: I read it for you, but you should read it for yourself. pt. 10

Underlying Factual Issues

            This section deals with general issues, such as the legal justification for the investigation, the legal limits on it, and the general pattern of behavior by Mr. Trump. This is a wide-ranging section, parts of which are rather technical, so a list of the salient points is useful.

1. First, this report differs from obstruction-of-justice cases typically handled by the Department of Justice because it deals with the President of the United States. Some of the report “raises garden-variety obstruction-of-justice issues,” other parts deal with the use or potential misuse of the powers granted to the President by Article II of the Constitution. This is relevant to the possible defense against the charge of obstruction, which is discussed later. At the same time, what for a billionaire heir businessman private citizen might be dismissed as “Trump being Trump” become much more legally fraught when done by the President of the United States, who has “unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.” It’s one thing if a private citizen, even a celebrity billionaire playboy, says some person or people should be “locked up” for a supposed crime; it’s quite another when the President, who has broad authority to help make that happen, says it. When Mr. Trump called for the Central Park Five to be executed, it was an abuse of his economic power; he was able to take out ads in papers, to use his celebrity status to get television air time, and so on. And it turns out he was wrong; he didn’t know the facts, jumped to a conclusion rather than wait for a proper investigation, and attempted to have innocent people killed. But he was still only a private citizen, albeit an enormously powerful one; the damage he could do himself was limited. The President of the United States, on the other hand, has far more informal power to influence, tweet, speak on television and so on, and formal power to hire and fire prosecutors and even the Attorney General if they investigate (or not) contrary to his whims. When he says someone should be “looked into” it isn’t just an opinion; it’s closer to a credible threat.
2. Many obstruction cases involve covering up an underlying crime. In this case, however, the Special Counsel did not find proof that Donald Trump Sr. knowingly conspired with Russia to undermine the U.S. election system. However, proof of an underlying crime is not necessary to establish obstruction of justice. The Special Counsel’s investigation firmly established that there were hundreds of contacts between the Trump campaign and Russian agents, as well as agents of other foreign governments; that these involved high-ranking members of this campaign including his own family; that the Putin regime was actively working to elect Donald Trump Sr. and that in many cases those campaign leaders knew that they were in contact with foreign agents and/or that they were receiving illegally obtained materials or other legally dubious help. All of this was acutely embarrassing to Mr. Trump and he was intensely concerned that it might undermine the legitimacy of his election. Furthermore, at the time the alleged obstruction occurred it was not established whether there was an underlying crime or whether the President’s own family might be prosecuted; as he himself said, his “satellites” might have done things he didn’t know about. In fact, at the time of this writing it is still not established whether there are more prosecutions; and multiple high-ranking Trump campaign directors or policy advisors have pled guilty or been convicted of felonies. Whether the obstruction of justice is motivated by a desire to avoid personal embarrassment or to hide a potential crime, the damage to the integrity of the justice system is the same; that is why obstruction of justice is such a serious matter.
3. Many of the alleged acts of obstruction-of-justice took place in public view. This seems strange, given that obstruction of justice is a felony; you would think someone committing a felony would be secretive. However, the report asserts that given the power the President has to influence witnesses and official proceedings through mass communication, what we need to focus on is not whether the act was publicly known but whether we can discern a corrupt intent. In many cases, such corrupt intent is in fact established by witnesses or even Trump’s own words. Whether witness tampering or other acts of obstruction occur privately or publicly, the damage to the judicial system is the same, and therefore the crime is equally serious.
4. While the report discusses separate instances of possible obstruction of justice, there is an overall pattern. At first, before Trump became aware that he was under any sort of investigation, he was concerned primarily to publicly clear his name. His efforts were primarily focused on getting intelligence and legal officials to state that there was no crime, or at least that he personally had not committed any crime, even though the investigation was still ongoing. But after firing James Comey, Trump found that he himself was being investigated for obstruction of justice, and his efforts became much more direct, aggressive and nasty.
5. Trump repeatedly attempted to undermine or control the investigation into Russia’s efforts to elect him. Those efforts were often unsuccessful because his aides and subordinates did not carry out his orders. Comey did not shut down the Flynn investigation, which ultimately led to Flynn’s prosecution. McGahn did not tell Sessions to fire Mueller, and did not agree later to lie about having been asked to fire Mueller. This does not make Trump himself any less guilty of obstruction of justice; only a trial could establish that. But it does let most of those aides off the hook since they refused to participate in what might have been illegal acts had they been carried out.
6. The President’s legal team offers what we might call the Nixon Defense: if the President does it, it is not illegal, even if it would have been illegal if any governor, senator or other official had done it, due to the authority and powers granted by Article II of the Constitution. Citing a great deal of case law, as well as legal interpretation of the Constitution including Article I and the principle of separation-of-powers, the Special Counsel’s report rejects this defense and holds that the laws against obstruction of justice apply to everyone, even the President. Requiring the President to obey laws against corruptly undermining the judicial system for his own personal gain does not unduly impede his ability to fulfill his office as described in Article II, while allowing the President to ignore laws passed by Congress and signed into law would unduly undermine the Article I responsibilities granted to Congress to pass laws for the good of the nation, and to exercise oversight of the other branches of government on behalf of the American people. In so deciding, the Special Counsel’s office cites many court rulings, including the Nixon case.
7. Finally, the conclusion: while the Special Counsel did not make a traditional recommendation whether to prosecute, it did clearly state that it could not make a decision not to prosecute. As stated earlier, the Special Counsel felt that it could not recommend prosecution no matter what it found, since the Department of Justice policy is to not charge a sitting President with a crime even if a crime is found. However, the Special Counsel is quite explicit about whether this means the President is exonerated. It does not. The report concludes that he may well have committed obstruction of justice, and that were he not President then a trial for obstruction would be warranted.

Mueller’s public testimony clarifies somewhat that if it were anybody else who had committed the actions discovered in this investigation, that person would be facing trial for obstruction of justice. If his office had cleared Trump of all crimes, they would have so stated; but he is not cleared. Mueller stated directly that Mr. Trump can be put on trial after he leaves office. When asked whether an impeachment inquiry would also be an adequate forum to publicly establish the President’s guilt or innocence, Mueller refused to answer. His only concern was with the legal issues and the Department of Justice guidelines that he operated under. These allowed for a criminal investigation to establish facts and record evidence while memories were still fresh and other documents and evidence still exist, even though those guidelines forbid even a sealed indictment. They make no claims about impeachment because that is not the authority of the Department of Justice; it is authorized under Article One of the Constitution, which gives the powers and describes the procedures by which Congress may impeach the President or other officials. The concern is to be fair to the accused, who must be given the chance to answer the charges promptly. In principle, since an impeachment trial is a trial, an impeachment would also qualify as a “forum in which” the accused may “vindicate themselves.”