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 seriously start 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.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.U.S. Constitution, Article II, Section 4
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
During the 2016 campaign, the media raised questions about a possible connection between the Trump Campaign and Russia. The questions intensified after WikiLeaks released politically damaging Democratic Party emails that were reported to have been hacked by Russia. Trump responded to questions about possible connections to Russia by denying any business involvement in Russia—even though the Trump Organization had pursued a business project in Russia as late as June 2016. Trump also expressed skepticism that Russia had hacked the emails at the same time as he and other Campaign advisors privately sought information about any further planned WikiLeaks releases. After the election, when questions persisted about possible links between Russia and the Trump Campaign, the President-Elect continued to deny any connections to Russia and privately expressed concerns that reports of Russian election interference might lead the public to question the legitimacy of his election.Mueller Report, Volume II, Section II, Part A (Overview)
Mueller does not describe any obstructive or potentially obstructive acts in this section.
B. The President’s Conduct Concerning the Investigation of Michael Flynn
During the presidential transition, incoming National Security Advisor Michael Flynn had two phone calls with the Russian Ambassador to the United States about the Russian response to U.S. sanctions imposed because of Russia’s election interference. After the press reported on Flynn’s contacts with the Russian Ambassador, Flynn lied to incoming Administration officials by saying he had not discussed sanctions on the calls. The officials publicly repeated those lies in press interviews. The FBI, which previously was investigating Flynn for other matters, interviewed him about the calls in the first week after the inauguration, and Flynn told similar lies to the FBI. On January 26, 2017, Department of Justice (DOJ) officials notified the White House that Flynn and the Russian Ambassador had discussed sanctions and that Flynn had been interviewed by the FBI. The next night, the President had a private dinner with FBI Director James Comey in which he asked for Comey’s loyalty. On February 13, 2017, the President asked Flynn to resign. The following day, the President had a one-on-one conversation with Comey in which he said, “I hope you can see your way clear to letting this go, to letting Flynn go.”Mueller Report, Volume II, Section II, Part B (Overview)
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
In early March 2017, the President learned that Sessions was considering recusing from the Russia investigation and tried to prevent the recusal. After Sessions announced his recusal on March 2, the President expressed anger at Sessions for the decision and then privately asked Sessions to “unrecuse.” On March 20, 2017, Comey publicly disclosed the existence of the FBI’s Russia investigation. In the days that followed, the President contacted Comey and other intelligence agency leaders and asked them to push back publicly on the suggestion that the President had any connection to the Russian election-interference effort in order to “lift the cloud” of the ongoing investigation.Mueller Report, Volume II, Section II, Part C (Overview)
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
Comey was scheduled to testify before Congress on May 3, 2017. Leading up to that testimony, the President continued to tell advisors that he wanted Comey to make public that the President was not under investigation. At the hearing, Comey declined to answer questions about the scope or subjects of the Russia investigation and did not state publicly that the President was not under investigation. Two days later, on May 5, 2017, the President told close aides he was going to fire Comey, and on May 9, he did so, using his official termination letter to make public that Comey had on three occasions informed the President that he was not under investigation. The President decided to fire Comey before receiving advice or a recommendation from the Department of Justice, but he approved an initial public account of the termination that attributed it to a recommendation from the Department of Justice based on Comey’s handling of the Clinton email investigation. After Deputy Attorney General Rod Rosenstein resisted attributing the firing to his recommendation, the President acknowledged that he intended to fire Comey regardless of the DOJ recommendation and was thinking of the Russia investigation when he made the decision. The President also told the Russian Foreign Minister, “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. . . . I’m not under investigation.”Mueller Report, Volume II, Section II, Part D (Overview)
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 Acting Attorney General appointed a Special Counsel on May 17, 2017, prompting the President to state that it was the end of his presidency and that Attorney General Sessions had failed to protect him and should resign. Sessions submitted his resignation, which the President ultimately did not accept. The President told senior advisors that the Special Counsel had conflicts of interest, but they responded that those claims were “ridiculous” and posed no obstacle to the Special Counsel’s service. Department of Justice ethics officials similarly cleared the Special Counsel’s service. On June 14, 2017, the press reported that the President was being personally investigated for obstruction of justice and the President responded with a series of tweets criticizing the Special Counsel’s investigation. That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.Mueller Report, Volume II, Section II, Part E (Overview)
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, and still unexplained, 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 after making the alleged order or fire him for failing to do so. And 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
Two days after the President directed McGahn to have the Special Counsel removed, the President made another attempt to affect the course of the Russia investigation. On June 19, 2017, the President met one-on-one with Corey Lewandowski in the Oval Office and dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only. One month later, the President met again with Lewandowski and followed up on the request to have Sessions limit the scope of the Russia investigation. Lewandowski told the President the message would be delivered soon. Hours later, the President publicly criticized Sessions in an unplanned press interview, raising questions about Sessions’s job security.Mueller Report, Volume II, Section II, Part F (Overview)
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. He 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
By June 2017, the President became aware of emails setting up the June 9, 2016[,] meeting between senior campaign officials and Russians who offered derogatory information on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” On multiple occasions in late June and early July 2017, the President directed aides not to publicly disclose the emails, and he then dictated a statement about the meeting to be issued by Donald Trump Jr. describing the meeting as about adoption.Mueller Report, Volume II, Section II, Part G (Overview)
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
From summer 2017 through 2018, the President attempted to have Attorney General Sessions reverse his recusal, take control of the Special Counsel’s investigation, and order an investigation of Hillary Clinton.Mueller Report, Volume II, Section II, Part H (Overview)
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
In late January 2018, the media reported that in June 2017 the President had ordered McGahn to have the Special Counsel fired based on purported conflicts of interest but McGahn had refused, saying he would quit instead. After the story broke, the President, through his personal counsel and two aides, sought to have McGahn deny that he had been directed to remove the Special Counsel. Each time he was approached, McGahn responded that he would not refute the press accounts because they were accurate in reporting on the President’s effort to have the Special Counsel removed. The President later personally met with McGahn in the Oval Office with only the Chief of Staff present and tried to get McGahn to say that the President never ordered him to fire the Special Counsel. McGahn refused and insisted his memory of the President’s direction to remove the Special Counsel was accurate. In that same meeting, the President challenged McGahn for taking notes of his discussions with the President and asked why he had told Special Counsel investigators that he had been directed to have the Special Counsel removed.Mueller Report, Volume II, Section II, Part I (Overview)
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]
In addition to the interactions with McGahn described above, the President has taken other actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn, Manafort, [name redacted] and[,] as described in the next section, Cohen. When Flynn withdrew from a joint defense agreement with the President, the President’s personal counsel stated that Flynn’s actions would be viewed as reflecting “hostility” towards the President. During Manafort’s prosecution and while the jury was deliberating, the President repeatedly stated that Manafort was being treated unfairly and made it known that Manafort could receive a pardon. [Sentence(s) redacted.]Mueller Report, Volume II, Section II, Part J (Overview)
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 President’s conduct involving Michael Cohen spans the full period of our investigation. During the campaign, Cohen pursued the Trump Tower Moscow project on behalf of the Trump Organization. Cohen briefed candidate Trump on the project numerous times, including discussing whether Trump should travel to Russia to advance the deal. After the media began questioning Trump’s connections to Russia, Cohen promoted a “party line” that publicly distanced Trump from Russia and asserted he had no business there. Cohen continued to adhere to that party line in 2017, when Congress asked him to provide documents and testimony in its Russia investigation. [n an attempt to minimize the President’s connections to Russia, Cohen submitted a letter to Congress falsely stating that he only briefed Trump on the Trump Tower Moscow project three times, that he did not consider asking Trump to travel to Russia, that Cohen had not received a response to an outreach he made to the Russian government, and that the project ended in January 2016, before the first Republican caucus or primary. While working on the congressional statement, Cohen had extensive discussions with the President’s personal counsel, who, according to Cohen, said that Cohen should not contradict the President and should keep the statement short and “tight.” After the FBI searched Cohen’s home and office in April 2018, the President publicly asserted that Cohen would not “flip” and privately passed messages of support to him. Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message, he would get a pardon or the President would do “something else” to make the investigation end. But after Cohen began cooperating with the government in July 2018, the President publicly criticized him, called him a “rat,” and suggested his family members had committed crimes.Mueller Report, Volume II, Section II, Part K (Overview)
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
Although this report does not contain a traditional prosecution decision or declination decision, the evidence supports several general conclusions relevant to analysis of the facts concerning the President’s course of conduct. . . . Although the events we investigated involved discrete acts—e.g., the President’s statement to Corney about the Flynn investigation, his termination of Corney, and his efforts to remove the Special Counsel—it is important to view the President’s pattern of conduct as a whole. That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn about his intent.Mueller Report, Volume II, Section II, Part L (Excerpt)
Mueller does not describe any obstructive or potentially obstructive acts in this section.