The Mueller report obstruction of justice section suggests if Trump weren't president, he would've been indicted

Even the redacted report shows that Mueller found no compelling reason to exonerate Trump. So he didn't.
WASHINGTON, DC - MARCH 24: President Donald Trump talks to memb
President Donald Trump talks to members of the media as he arrives on the South Lawn of the White House, on March 24, 2019.Oliver Contreras / The Washington Post via Getty Images file
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By Michael Conway, Former counsel, U.S. House Judiciary Committee

Special Counsel Robert Mueller's redacted final report explicitly chose not to decide if President Donald Trump had committed criminal obstruction of justice. But Mueller's detailed factual findings paints a damning portrait of a president repeatedly trying — sometimes successfully, and sometimes not — to hinder, if not derail, the investigation of Russian interference in the 2016 election.

In the 182-page detailed analysis of the facts and legal standard to prove obstruction of justice, Mueller examines 10 separate incidents in which the president's actions could be viewed as obstruction of justice. Tellingly, an obstruction effort need not be successful to be a federal crime: A person is guilty if he or she "obstructs, influences or impedes any official proceeding, or attempts to do so."

The president's actions at that time included: firing FBI Director James Comey, after seeking to have him drop the investigation of national security adviser Michael Flynn; telling White House counsel Donald McGahn to fire Mueller and then, following accurate press reports about Trump's order, directing McGahn to falsely deny the story; and demanding that then-Attorney General Jeff Sessions rescind his recusal, among others.

(McGahn's refusal to fire Mueller was, according to his testimony, to avoid being "a Saturday Night Massacre Bork" — referring to Robert Bork, the solicitor general who fired Special Prosecutor Archibald Cox during the Watergate investigation and later found his actions that night an indelible stain on his legal reputation.)

Despite Barr's initial contention that Mueller declined to recommend prosecution of the president for obstruction because of difficult issues regarding his actions and intent, the decision was foreordained by Mueller's explicit adherence to the Department of Justice Office of Legal Counsel's policy statement that a sitting president cannot be indicted. Mueller acknowledged that, as a department employee, he had to accept the legal conclusion of the department. Mueller concluded that, if his report even suggested that President Trump could otherwise face federal charges, that would not be fair because the president could never clear himself (as would happen if a jury found him "not guilty") since there would never be a trial.

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Of course, that policy did not bar Mueller from exonerating the president, if that is what the facts warranted. He did not do that, saying the investigation "does not exonerate him."

Mueller also dismissed the option of charging the president in a sealed indictment to be released after Trump left office, for fear that the indictment would be leaked and the stigma would undermine the president's ability to govern.

When viewed in the context of Mueller's reliance on a Justice Department policy that immunizes the president from criminal prosecution, the facts compellingly mustered in his report show the real criminal exposure that would be faced by any person who is not the president.

Mueller correctly stated that an obstruction of justice requires the accused to have acted with a corrupt intent. Mueller sought a voluntary interview with the President but the report stated that "After more than a year of discussion the president declined to be interviewed." (Surprisingly the next three lines of the report are redacted on the basis of grand jury information.)

President Trump did answer written questions, but none of those related to the obstruction of justice prong of the investigation. Mueller said that he had the authority to issue a grand jury subpoena for President Trump to testify under oath, but concluded that the ensuing legal fight would cause a "substantial delay" in completing his work. So Mueller gave up on trying to discern Trump's intent from the horse's mouth.

The successful stonewalling by President Trump puts the lie to Barr's statement that the White House had fully cooperated with the investigation. Trump's refusal to testify put up a greater barrier to Mueller's decision-making about obstruction than might have been anticipated.

Still, even without Trump's testimony, Mueller acknowledged that circumstantial evidence could have supported an obstruction charge. And, contrary to William Barr's legal position, Mueller concluded that a person can criminally interfere with an investigation even if no underlying crime is ever proven. This makes legal sense: A person is guilty of obstruction if he urges a witness to lie to an FBI agent at the outset of an investigation, even if the prosecutor never indicts anyone for the incident under investigation.

Mueller made another important point in noting that person's motives in hindering an investigation may also be based upon "avoiding financial liability or preventing personal embarrassment," If President Trump were interfering with the Special Counsel's investigation for fear of disclosure of Trump organization business dealings or unethical behavior of him or his associates, rather than because of any conspiracy being investigated, that would still be a crime.

Hamstrung by the departmental policy that the president cannot be indicted, Mueller chose not to make a recommendation. Instead he laid out the facts for Congress and the public to evaluate and, if appropriate, to act. In a telling reference on the first page of the obstruction of justice section of report, Mueller wrote, "We recognize 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 conduct."

What constitutional process is that exactly? The footnote following that sentence said "discussing the relationship between impeachment and the criminal prosecution of a sitting president."

Mueller has completed his investigation. Whether the president obstructed justice will not be decided by Barr's refusal to indict Trump, but rather the conclusions of Congress and the public in either impeachment proceedings — or the ballot box in 2020.