“Although the President has broad authority under Article II, that authority coexists with Congress’s Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions…We were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise valid Article II powers.”
— The Mueller Report, Volume II
(Bloomberg Opinion) -- You wouldn’t have known from Attorney General William Barr’s succinct and misleading four-page summary that fully 21 pages of the 448-page report from Special Counsel Robert Mueller, released publicly on Thursday, are devoted to an important, thoughtful discussion of whether any president is above the law.
In his letter of March 24, Barr made much of the fact that Mueller decided he couldn’t bring criminal conspiracy charges against President Donald Trump, some of his family members and his political advisers. Fair enough. Despite ample evidence of frequent and purposeful contacts between Team Trump and scammers, spies, emissaries and opportunists going to bat for Russia and themselves, none of it pulled together as a coordinated, single-minded, law-breaking effort. (Anyone who believes that most of this wasn’t legitimate fodder for a substantial law enforcement inquiry and media scrutiny, however, is either willfully ignorant or wearing partisan blinders.)
Obstruction of justice is another matter. Mueller and his investigators clearly don’t see Trump as a particularly law-abiding chief executive. The report lists at least ten episodes in which Trump may have crossed the line in his efforts to beat back the Russia probe. As Barr himself acknowledged in his letter, Mueller made clear that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
That’s presumably why Barr went out of his way to personally absolve Trump of obstruction in his letter. Barr essentially believes presidents exist beyond much of the law, even, apparently, presidents as irresponsible and ethically soiled as Trump. Having read the report before the rest of us, Barr stooped to pull the legal rug out from beneath Mueller’s obstruction claims before the special counsel had a chance to present his evidence. If Trump didn’t commit an underlying crime, said Barr, then there was no justice to obstruct.
It’s easy to see why Barr ignored Mueller’s 21 pages pondering presidential immunity, executive authority, the separation of powers and the Constitution. It would have made things complicated. Political errand boys know that black-and-white sells and simplicity persuades.
Mueller was operating on a different plane. He was after the truth. “Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russia-interference and obstruction investigations,” Mueller’s report advises. And again: “The President engaged in a series of targeted efforts to control the investigation.”
This matters, Mueller correctly noted, in and of itself: “The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.”
Among the cluster of obstruction possibilities that Mueller looked at, two stand out: Trump firing his former FBI director, James Comey, and Trump maneuvering, at least twice, to try to can Mueller himself.
In the Comey firing, Mueller offers motive: “The evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.” Trump’s efforts to close a lucrative real estate deal in Moscow before and during his presidential campaign looms large as an example of something he preferred to keep under wraps (and which he repeatedly lied about in interviews and press briefings).
When Trump pressured his White House counsel, Donald McGahn, to fire Mueller as the Russia probe heated up, he was operating from a place of fear. “Oh my God. This is terrible. This is the end of my Presidency. I’m f----d,” is how the report recounts Trump’s reaction to Mueller’s appointment as special counsel. Despite Trump’s denials that there was anything untoward about asking for Mueller’s dismissal, there “is evidence that the President knew that he should not have made those calls to McGahn.” In fact, according to the report, Trump then asked McGahn to lie about the requests — suggesting that he intended to obstruct justice by trying to torpedo Mueller, and then scrambled to cover up his own actions.
While uncovering and proving intent is an elusive thing in criminal investigations, Mueller records multiple instances in which Trump’s intentions seem obvious. Indeed, Trump, who regularly jackhammers the people who work for him, owes a debt of gratitude to McGahn and others on his White House staff for deciding to ignore many of his possibly illegal directives. “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report says.
I’ve noted before that I think not compelling Trump to testify personally was the most glaring shortcoming of Mueller’s investigation. In an appendix to the report, Mueller discloses that his investigators believed that Trump’s written responses to their queries were “inadequate.” In more than 30 instances, Trump said he couldn’t remember pivotal events or claimed that he lacked “independent recollection” which prevented him from answering questions.
Mueller says his team believed that taking the president on would have resulted in a lengthy court battle that would have delayed important disclosures about the Trump White House that are now in the public realm. More importantly perhaps, Mueller notes that he didn’t feel he needed a full-blown interview with Trump because the evidence he had amassed around obstruction was already so compelling. Mueller is a veteran, well-regarded prosecutor, and that kind of certitude is damning.
“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,” the report points out. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
All this leaves open the question of how Mueller, if he truly believes Trump is guilty of obstruction, hoped justice would be served if not through the courts. In perhaps his most important line, he concluded that “Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.”
So now it’s your turn, Congress.
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Timothy L. O’Brien is the executive editor of Bloomberg Opinion. He has been an editor and writer for the New York Times, the Wall Street Journal, HuffPost and Talk magazine. His books include “TrumpNation: The Art of Being The Donald.”
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