Did Trump Obstruct Justice?

The report of Special Counsel Robert Mueller’s investigation of President Donald Trump (R), his 2016 campaign, and Russian interference in the election, gave us the answers to many questions. Read the report here (PDF link).

We know, for example, that the Russians attempted to interfere in our election. At first, they attempted to sow general discord and advance the campaigns most likely to create chaos—Trump’s on the Republican side, and Senator Bernie Sanders’s (I-VT) on the Democratic side. Later, after Sanders had lost the Democratic Party primary, they threw their weight more exclusively behind Trump.

We also know that there were no collusion between the Trump campaign and the Russian government or its proxies. There were some isolated meetings and other contacts—typical of those in any high-level political campaign—but there was no direct coordination. The Trump campaign did not knowingly seek or accept Russian support.

All of this is laid-out plainly in the first volume of the Mueller report, and, thankfully, the press seems to have let most of these issues drop (although a lack of evidence didn’t stop them from harping on “Trump and the Russians” for the preceding two years). The ongoing controversy has been related to the second volume of the report, where Mueller was much more equivocal in his conclusions. Well, actually, he didn’t bother making any conclusions at all.

This was a dereliction of duty.

I supported the appointment of a special counsel. In my 2017 article about Trump and the Russians, linked above, I wrote: “No administration is competent to investigate itself, so it was right for the Department of Justice to appoint . . . an independent special counsel. Mueller is responsible for looking into whether any crime was committed at all, and, if so, determining who was involved.”

But I supported Mueller’s investigation on the assumption that he would come to clear conclusions. I did not expect him to equivocate and dissemble.

The first volume of the report was exactly as thorough in its research and forthright in its conclusions as it should have been, but the second volume was a mess. It raised questions rather than answering them. It spread innuendo rather than clarity. If Mueller believed that some of Trump’s behavior was criminal, he should have said so. If he did not, he should have said so. Instead, he simply listed out some things that might be crimes, argued both sides of the question (with mixed success), and then shrugged his shoulders and left it there for America to ponder.

The point of this whole endeavor was to answer these questions . . . not to ask them over again with a bit more detail. But Mueller’s second volume left us with no conclusion at all. “While this report does not conclude that the President committed a crime, it also does not exonerate him” (Volume II, Pages 8 and 182). So we were left where we were in the beginning . . . Trump’s supporters keep yelling about his innocence, and his opponents keep yelling about his guilt.

So . . . What Now?

What seems to be missing from our national discourse in the aftermath of the Mueller report is any reasonable effort to review his work and make the “traditional prosecutorial judgment[s]” that he refused to make. Instead of harping on preconceived notions, let’s look at the “Factual Results of the Obstruction Investigation” in Mueller’s second volume and make some judgments about the all-important question: Did Trump obstruct justice?

If the answer is “yes,” then we should start seriously looking into impeachment. That is the recourse under the U.S. Constitution for dealing with a criminal president. If the answer is “no,” then we should drop this whole business and get on with life.

There is some debate over what constitutes “high crimes and misdemeanors” for impeachment purposes. My personal rule-of-thumb is simple: If a ‘normal’ person like me would go to prison for it, the president should be impeached for it (and removed from office if convicted). In practice that basically means that felony crimes are impeachable. The only exception to this rule—and it is an exception that will weigh heavily in the rest of this essay—is that presidents have a broad, inherent authority to manage the executive branch . . . an authority you and I lack.

There is also an important distinction to be made between impeachment and removal from office. Comparing this to the normal criminal justice system, impeachment is the indictment . . . it means that the prosecutors think there’s enough evidence to charge you with a crime, take you to court, and have a decent chance of winning. It does not necessarily mean you are actually guilty of the crime. That will come out in the trial. If convicted in an impeachment trial, the only possible punishment is removal from office.

So, let’s go through the “factual results” of the second volume of Mueller’s report and consider whether any of the items included therein constitute an impeachable offense.

Before proceeding, I want to note that just because something may warrant impeachment does not necessarily mean that the president is guilty or that he should be removed from office. That would depend on the results of the impeachment trial—including the evidence itself and the legal arguments about presidential authority. I am only considering whether there is enough evidence to warrant such a trial in the first place, not what it’s outcome might be.

Mueller’s Factual Results

The Report on the Investigation Into Russian Interference in the 2016 Presidential Election, Volume II, contains Special Counsel Robert Mueller’s “factual results” about possible obstruction of justice by Trump, as well as a section summarizing the legal defenses to applying obstruction of justice statutes to the president.

In the report, Mueller says he and his team “summarize the evidence we found and then analyze it by reference to the three statutory obstruction-of-justice elements: obstructive act, nexus to a proceeding, and intent.” The details of these elements are described in Volume II, section I, part A (pages 9-12), but I will summarize them here.

First, for an act to constitute obstruction of justice, it must be obstructive. This means that it “prevents justice from being duly administered, regardless of the means employed” (U.S. v. Silmerman).

Second, the act must have a nexus to a “pending or contemplated official proceeding.” In other words, the act must be connected to an official investigation in progress, or one that can be reasonably expected to occur.

Third, there must be a corrupt intent. This is defined by law as acting “with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede[,] or obstruct” the proceeding.

As described above, Mueller failed to come to any “traditional prosecutorial judgement[s],” and explicitly states that his report does not conclude that Trump committed a crime, but doesn’t exonerate him either. Mueller broke his “factual results” into twelve subsections. I have structured my review of Mueller’s work, and my own conclusions about whether Trump committed crimes or impeachable offenses, in the same way.

A. The Campaign’s Response to Reports About Russian Support for Trump

Mueller does not describe any obstructive or potentially obstructive acts in this section.

B. The President’s Conduct Concerning the Investigation of Michael Flynn

The potentially obstructive act described in this section relates to former FBI Director James Comey’s (R) meeting with President Trump on February 14, 2017, in the Oval Office at the White House. Comey claims that Trump told him, “I hope you can see your way clear to letting this go, to letting Flynn go . . . I hope you can let this go.” Nobody else was in the room at the time, and Trump denies asking Comey to “let Flynn go.”

Even if we assume, for the sake of argument, that Comey’s account of the meeting is accurate, this statement would not constitute obstruction of justice.

First, the president is the head of the executive branch and has constitutional authority to direct the activities of that branch . . . including federal law enforcement investigations. The president cannot “obstruct” himself in his own areas of responsibility. Even if he had directly instructed Comey to end the Flynn investigation, this would not be legally obstructive (although it would have been morally and politically reprehensible).

Second, he did not directly instruct Comey to end the investigation . . . and after the meeting, Comey did not do so. Comey claims that he “understood the [p]resident’s statements as a directive,” but, if that were true, then he would have been obligated as an executive branch official to either follow that directive or, if he could not do so in good conscience, resign his office. He did neither.

And this is all before we even consider whether Comey’s testimony is trustworthy. I am inclined to believe that his version of the story is closer to the truth than Trump’s, given the secondary evidence and the fact that Trump apparently cleared the room of witnesses before the meeting. But I have no way of knowing that for certain, and it would be impossible to prove.

Trump’s defense of Flynn was badly misguided and morally questionable (at best), but not criminal, and not an impeachable offense.

C. The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

The potentially obstructive acts recounted in this section revolve around President Trump’s outreach to intelligence and law enforcement officials and his urging them to “get the word out that the [president] had not done anything wrong related to Russia.”

Multiple such efforts are described in the report, but Mueller finds that they “were not interpreted by the officials who received them as directives to improperly interfere with the investigation.” On the contrary, Trump even told FBI Director Comey that if “some satellite [of the campaign]” was involved with Russia, “it would be good to find that out.”

Trump was obviously angry about the genesis of the Russia investigation and the way it was playing out . . . including Attorney General Jeff Sessions’s (R) recusal and Comey’s refusal to acknowledge publicly (as he had privately) that Trump himself was not the subject of the investigations. This is understandable. As the first volume of Mueller’s report clearly establishes, the Trump campaign had done nothing wrong with regard to the Russians. Trump had every right to be pissed-off about what he viewed as a pointless investigation and a distraction that was undermining the legitimacy of his win and his ability to govern.

As Mueller puts it, “Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations.”

None of the actions recounted in this section constitute obstruction, and none are impeachable offenses.

D. Events Leading Up To and Surrounding the Termination of FBI Director Comey

In and of itself, the firing of FBI Director Comey could not possibly constitute obstruction of justice. Presidents have broad constitutional authority over who serves in the executive branch. Like previous controversies over executive firings, this was ‘much ado about nothing.’

There were very good reasons to fire Comey . . . not least of which being his epic mishandling of the Clinton email case and his bizarre and erratic behavior in the aftermath. Presidents Obama and Trump both should have fired him many times over before it finally happened.

And had Trump just left it at that—‘I fired a terrible, corrupt moron’—it would have been fine. And that is basically what he said at first. But then he started talking in interviews and on Twitter about how the Russia investigation led to the firing, and that made it look like an obstructive act. Although, even then, it would fall under the president’s broad constitutional authorities over the executive branch. Like I said earlier, the president cannot “obstruct” himself in his own areas of responsibility.

Putting aside the esoteric questions about the extent of presidential authority over his own branch of government, firing an FBI director would not end an investigation anyway. As Mueller points out, “The anticipated effect of removing the FBI director . . . would not necessarily be to prevent or impede the FBI from continuing its investigation. As a general matter, FBI investigations run under the operational direction of FBI personnel levels below the FBI director.”

As to Trump’s motive in firing Comey, Mueller says, “Substantial evidence indicates that the catalyst for the President’s decision to fire Comey was Comey’s unwillingness to publicly state that the [p]resident was not personally under investigation, despite the [p]resident’s repeated requests that Comey make such an announcement.” In other words, the Russia investigation wasn’t the problem, Comey’s refusal to obey a lawful presidential directive to make a truthful public statement about it was.

Trump’s public comments about the firing of James Comey raised legitimate questions about whether it was intended to be obstructive. Indeed, this was the main catalyst that led to the appointment of the special counsel in the first place. But the investigation shows that Comey was fired because of incompetence and insubordination. It was not an effort to stop the Russia investigation, which went on without him anyway.

Thus, the firing of James Comey did not constitute obstruction, and was not an impeachable offense.

E. The President’s Efforts to Remove the Special Counsel

The potentially obstructive act described in this section—Trump’s alleged instruction to White House Counsel Don McGahn to have the special counsel removed—is one of the more serious accusations, but it is also one of the more perplexing ones.

First, we must remember that the president has a broad authority to decide who serves under him in the executive branch of government. Presidents can fire people for pretty much any reason they want . . . and this authority extends to special counsels, who, under the current special counsel laws, fall under the authority of the Department of Justice and, therefore, under the authority of the president.

If Trump truly believed that Mueller was biased, incompetent, or otherwise ill suited to the responsibilities he had been given, Trump could have fired him. Additionally, as head of the executive branch, the president has constitutional authority to direct the activities of that branch. As described earlier, the president cannot “obstruct” himself in his own areas of responsibility.

It would, of course, have been politically destructive for the president to fire Mueller or to shut down the special counsel’s office. And Trump never did. But would it have been a crime? Would it have been obstruction of justice? Perhaps in a moral sense, but certainly not in any actionable legal sense. If it is true that President Trump instructed McGahn to fire the special counsel, it would be an outrageous moral overreach . . . but not a crime.

McGhan claims that Trump ordered him to have Mueller fired. I am inclined to believe him, but, yet again, only he and Trump were there when the conversation took place. Trump’s account differs; he claims he only “wanted McGahn to bring conflicts of interest to the Department of Justice’s attention.” As Mueller puts it, “Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

Most notably, McGahn claims Trump made the request on two separate occasions and that he understood him the same way both times. McGahn also prepared to resign, rather than participate in something he believed would be akin to President Richard Nixon’s (R) “Saturday Night Massacre.”

The most mysterious aspect of this is that President Trump had a clear constitutional authority to fire Mueller if he wished to. Why didn’t he just . . . do it? Why did he want the White House counsel to call the acting attorney general to tell the special counsel? Why did he attempt to raise obviously specious claims of a conflict of interest? What was the end-game here? This whole episode is so bizarre as to be almost entirely inexplicable.

But, bizarre as it was, and shady as it was, no actual legal obstruction occurred. Trump did not follow through with firing Mueller, nor did he follow up with McGahn for failing to follow the alleged order to fire Mueller. Even if he had, he was well within his constitutional authorities to do so.

Although this episode is troubling from a moral and political perspective, none of the actions recounted in this section constitute obstruction in a legal sense, and none are impeachable offenses.

F. The President’s Efforts to Curtail the Special Counsel Investigation

The potentially obstructive acts described in this section revolve around President Trump’s alleged efforts to limit the scope of the Russia investigation.

Trump wanted Attorney General Sessions to disregard his recusal, instruct the special counsel to limit the scope of the investigation to the prevention of foreign meddling in future elections, and make a public statement that “‘for a fact’ that ‘there were no Russians involved with the campaign’ because he ‘was there.'”

Of course, Trump never followed through on these requests. He instructed Corey Lewandowski, his onetime campaign manager, to deliver a message to Sessions with these instructions, but Lewandowski never did so. As was the case in the previous section, it is unclear why Trump didn’t communicate his wishes directly to Sessions. Why rely on Lewandowski, who had no official role in the White House? Mueller claims this is evidence of nefarious intent; I think it’s just weird and inexplicable.

This affair leaves a bad taste in my mouth. . . . And yet, as before, it is clear that no legally obstructive act occurred. Trump never followed-up to ensure that his message to Sessions had been delivered, and apparently never discussed its contents with Sessions. He never took any official action to limit the scope of the special counsel investigation or to punish Sessions for failing to do so. When Sessions was eventually fired, he was replaced by Attorney General William Barr (R), who also took no action to impede the special counsel investigation.

And even if we put all of this aside, we have to come back (again) to the fact that the president has a legal authority to direct executive branch activities, including law enforcement investigations, and to fire executive branch officials at will. Even if Trump had followed through with his worst and most unnerving inclinations in this case, it still would not have been a crime.

Mueller himself, when he appeared before Congress on July 24, 2019, was asked by Representative Douglas Collins (R-GA 9th): “At any time in the investigation, was your investigation curtailed or stopped or hindered?” Mueller responded plainly: “No.”

None of the actions recounted in this section constitute obstruction in a legal sense, and none are impeachable offenses.

G. The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016, Meeting Between Russians and Senior Campaign Officials

The potentially obstructive acts in this section revolve around efforts by Trump and his staff to prevent the public release of emails relating to the infamous Trump Tower meeting between campaign officials (Donald Trump Jr., Jared Kushner, and Paul Manafort) and Russian attorney Natalia Veselnitskaya.

It should be noted that the meeting itself, though ill-advised and politically damaging once revealed, was not a criminal act and did not constitute collusion or conspiracy. This is handled in greater depth in Mueller’s first volume. This section deals only with efforts to prevent emails relating to that meeting from becoming public.

Trump only sought to withhold this information from the press, not from Congress or the special counsel. This was poor strategy in the long run, and reflects poorly on the president and his promises of transparency, but it is not a crime.

Mueller says, “Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the [p]resident, by taking these actions, sought to withhold information from or mislead congressional investigators or the [s]pecial [c]ounsel. . . . But the evidence does not establish that the [p]resident took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the [s]pecial [c]ounsel.”

Mueller himself has stated his conclusion, albeit in a roundabout way. None of the acts in this section are obstructive, and none are impeachable offenses.

H. The President’s Further Efforts to Have the Attorney General Take Over the Investigation

The potentially obstructive acts in this section revolve around President Trump’s apparent frustration with Attorney General Sessions’s recusal from the Russia investigation, and the scope of that investigation under the special counsel.

Mueller’s report catalogs several times that Trump encouraged Sessions to reverse his recusal and take control of the investigation, or formally limit its scope. He also encouraged Sessions to begin a new investigation and prosecution of former Secretary of State Hillary Clinton (D) for her violations of classified material and government record-keeping laws.

Trump was always clear, however, that he was not directing Sessions to do anything (although, as president, he had clear legal authority to do so if he wanted to). A witness to one of these conversations quoted Trump, saying, “[I’m] not telling you to do anything. . . . I’m not going to get involved. I’m not going to do anything or direct you to do anything. I just want to be treated fairly.”

At the risk of sounding like a “broken record,” I must again point out that the president has a broad authority over the activities of the executive branch. Trump would have been perfectly within his rights to instruct Sessions to un-recuse himself, take control of (or limit) the Russia investigation, or initiate a new investigation of Clinton. These may have been politically damaging and morally questionable, had he done them, but none of these directives would have been criminal.

And, of course, Sessions would have been free to refuse to take these actions . . . either by resigning or by letting Trump fire him.

And so, again, we are faced with a potentially obstructive act that was merely some light pressure on the attorney general to make the Russia investigation—which Trump, knowing his campaign’s innocence, perceived as an unnecessary distraction—go away . . . pressure that Trump was perfectly within his rights to exert.

None of the acts in this section are obstructive, and none are impeachable offenses.

I. The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel

The potentially obstructive acts described in this section relate closely to those described in Section E above. In Section E, we dealt with Trump’s alleged instruction to White House Counsel Don McGahn to have the special counsel removed, and whether that constituted obstruction (it did not, as described there).

The acts in this section deal with Trump’s efforts to have McGahn deny that he had been instructed by Trump to fire the special counsel. As discussed before, I am inclined to believe McGahn’s account, but only he and Trump were there when the conversation took place, and Trump claims he only “wanted McGahn to bring conflicts of interest to the Department of Justice’s attention.”

It is possible that both men are acting in good faith, and the root of this is a misunderstanding. Trump is notoriously imprecise in his manner of speech, and it can sometimes be difficult to infer what he actually means. He is prone to overstatement, exaggeration, and distraction. Mueller acknowledges this possibility, stating that, “[Some of the] evidence could indicate that the President was not attempting to persuade McGahn to change his story but was instead offering his own—but different—recollection of the substance of his June 2017 conversations with McGahn and McGahn’s reaction to them.”

Mueller, however, ultimately comes to the conclusion that Trump was actually attempting to get McGahn to falsify his story. He cites the fact that Trump continued to press McGahn even after he had made his position clear, and that Trump almost certainly knew that McGahn’s account would be part of any obstruction of justice inquiry.

Like I said in Section E, this set of incidents with McGahn remains the most perplexing and difficult part of this whole affair. Trump’s behavior was bizarre and shady. And if Trump knowingly instructed McGahn to lie to investigators, that would constitute obstruction of justice.

Whether Trump committed a crime hinges on whether he actually was instructing McGahn to lie, and there’s no way to know that . . . because the only two people in the room when the original conversation took place were Trump and McGahn, and both offer different versions of the story. If Trump’s account of that original meeting is true—or even if it isn’t, but that’s how Trump remembers it—then he was merely asking McGahn to tell the truth. That is not a crime.

McGahn’s testimony is more credible than Trump’s. It is likely that Trump asked McGahn to lie, which, if true, constitutes obstruction of justice. However, the only evidence for this is McGahn’s recollection of the original meeting, which Trump disputes. It would be impossible to prove the offense beyond a reasonable doubt.

It is likely that Trump’s efforts to influence McGahn constitute obstructive acts, and are therefore likely impeachable offenses. However, because this conclusion rests only on the conflicting testimony of individuals, it would be difficult or impossible to prosecute such a case and obtain a conviction.

J. The President’s Conduct Towards Flynn, Manafort, and [redacted]

The potential obstructive acts described in this section relate to President Trump’s dealings with former National Security Advisor Michael Flynn (also see Section B), former Trump Campaign Chairman Paul Manafort, and a third individual whose name has been redacted, but is likely former Trump campaign strategist Roger Stone.

Flynn and Trump initially had a joint defense agreement. When Flynn withdrew from that agreement, Trump signaled to him through his personal attorney that it would be interpreted as a hostile act toward the president. Mueller suggests that this was an effort to affect “Flynn’s decision to cooperate [with the special counsel investigation], as well as the extent of that cooperation.”

Similar communications with Manafort involved repeated statements that suggested Trump might eventually pardon Manafort, and that he did not want Manafort to “‘flip’ and cooperate with the government.” Manafort pleaded guilty in a plea agreement with prosecutors, but was later found to have violated the agreement by lying to investigators.

All content of the Mueller report dealing the third individual—again, presumed to be Stone—is redacted.

Mueller concludes with regard to Flynn that, “Evidence concerning the [p]resident’s intent related to Flynn as a potential witness is inconclusive.” But with regard to Manafort, “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government . . . [T]he evidence supports the inference that the [p]resident intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.”

It is unlikely, however, that this could be proven in a court of law. The statements made by Trump and his surrogates about Manafort could be interpreted as an attempt to influence him to limit his cooperation with investigators, but could also be interpreted as a friend lending moral support to a friend he believes is being treated unfairly. One would be obstructive, the other would not . . . and the only difference would be intent. The only person who knows what Trump’s intent was is Trump himself.

It is possible that Trump’s conduct toward Manafort constitutes an obstructive act, and therefore could be an impeachable offense. However, there is insufficient evidence to warrant prosecution at this time.

(Note: If the redacted parts of this section are released to the public at a later date, it is possible that they would influence or change my conclusion.)

K. The President’s Conduct Involving Michael Cohen

The potential obstructive acts described in this section revolve around President Trump’s former personal attorney, Michael Cohen, who was convicted for committing perjury before Congress. Mueller’s investigation looked at two key questions: “whether the President or others aided or participated in Cohen’s false statements to Congress,” and “whether the President took actions that would have the natural tendency to prevent Cohen from providing truthful information to the government.”

As public discussion of Russia’s apparent support for the Trump campaign came to the fore during the 2016 campaign season, the campaign made a concerted effort to distance itself and candidate Trump from any Russian interests. The Trump Organization had been involved in talks relating to a Trump Tower Moscow project, but this had largely fallen apart in the early days of the campaign.

Cohen’s perjury before Congress dealt primarily with the timeline of the ill-fated Trump Tower Moscow project; he attempted to make it seem as if the project was less serious, and involved less communication between Trump and Russia than it actually did. With regard to Mueller’s first question, he concludes, “[T]here is evidence . . . that the [p]resident knew Cohen provided false testimony to Congress about the Trump Tower Moscow project, [but] the evidence available to us does not establish that the President directed or aided Cohen’s false testimony.”

With regard to Mueller’s second question, regarding Trump’s alleged efforts to influence Cohen, this takes a similar form to Trump’s dealings with Manafort described in the previous section. When Cohen appeared to be staying on message, and before he “flipped,” Trump sent encouraging messages through intermediaries. After Cohen decided to cooperate with investigators, Trump called him a “rat” and made other accusations against him.

Mueller suggests that, “The evidence . . . could support an inference that the [p]resident used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.”

Yes, this is possible. But, as in the Manafort case, it would hinge on intent. Was Trump trying to prevent Cohen from cooperating with investigators, or was he only supporting a friend? And when Cohen “flipped,” how do we know that Trump wasn’t mad at Cohen because he had started lying about Trump to protect himself? And how would we prove it either way?

It is possible that Trump’s conduct toward Cohen constitutes an obstructive act, and therefore could be an impeachable offense. However, there is insufficient evidence to warrant prosecution at this time.

L. Overarching Factual Issues

Mueller does not describe any obstructive or potentially obstructive acts in this section.