When the redacted version of Special Counsel Robert Mueller’s report on Russia’s interference in the 2016 presidential election was released last week, the President and his defenders were quick to claim vindication. Conservative media blasted out the White House’s preferred catch phrases: “No collusion, no obstruction” and “completely exonerated.”
It’s true that Mueller found there wasn’t enough evidence to support a charge that the Trump campaign engaged in a criminal conspiracy to collude with elements of the Russian government to manipulate the 2016 election, though the Mueller Report makes clear the campaign’s behavior in that regard was far from virtuous.
The final word on obstruction of justice, which occupies more than 180 pages of the Special Counsel’s final report, does not exonerate, however. Legal analysts have argued that Mueller found significant evidence that the President obstructed justice in an attempt to undermine the investigation into the 2016 election. However, Mueller did not reach a conclusion on the ultimate question of whether the President obstructed justice.
Attorney General William Barr took the liberty of ruling that the President had not committed obstruction. However, while prosecuting a sitting President is unprecedented and against existing Department of Justice policy, the final word on obstruction will ultimately be political – now that Congress has the Mueller Report, it must decide what to do with it.
10 Possible Instances of Obstruction
The full Mueller Report can be found online here.
When following news stories or analysis of the report, it’s important to understand one crucial legal fact. There’s an existing Office of Legal Counsel opinion, originally issued in 2000, which finds that “the indictment of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” And the Mueller Report made clear that the Special Counsel, even setting aside the OLC opinion, was sensitive to the fact that a prosecution of a sitting President would “place burdens on the President’s capacity to govern.”
This is especially important to remember when the conversation turns to obstruction of justice, where the Mueller Report details a number of truly troubling incidents in which a reasonable person could conclude that the President of the United States attempted to obstruct the conduct of an ongoing investigation.
According to the report, there are three elements to obstruction of justice: an obstructive act, a connection between the act and an official proceeding and corrupt intent. The report analyzed 10 specific actions which could have constituted obstruction – these included the President attempting to convince then-FBI Director James Comey to “let Flynn go” (a reference to the investigation into former National Security Advisor Michael Flynn), the firing of Comey and attempts to get Attorney General Jeff Sessions to either “un-recuse” himself from the Russia investigation or limit the investigation’s scope.
This color-coded chart with every potentially obstructive act was posted on Twitter by @msanjola and can be found here.
Taken as a whole, the report’s findings on obstruction paint a damning portrait of a President desperate to end an investigation into his campaign. While Mueller declined to reach an official conclusion on the obstruction question, he did say, in one of the report’s most widely quoted passages, “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. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”
Up to Congress
Mueller’s options were ultimately limited by the existing Justice Department opinion and policy. Congress, however, has much more freedom of action in responding to the Mueller Report.
Republicans are united in defending the President in the wake of the report’s release. The same cannot be said for Democrats, who control the House. Massachusetts Senator Elizabeth Warren, who is running for President, has called for impeachment proceedings to begin in the House, and she is not alone in that sentiment.
Democratic leadership, however, is much cooler on the idea of impeachment. This reluctance is not a reflection of any particular fondness for Donald Trump – Democratic leaders fear the political ramifications of impeachment. While the President is unpopular, so is the idea of impeachment, and no one believes there is any chance that a GOP-controlled Senate would vote to remove the President if the House did succeed in impeaching him.
At the moment, the Democratic plan is to use the Mueller Report as a jumping off point for further hearings and investigations. Democrats in the House have already subpoenaed the full, un-redacted report, and Democrats seem certain to subpoena Mueller himself to testify before a House committee.
The fantasies of Robert Mueller single-handedly saving the country with his investigation were always that – fantastical. But his report provides invaluable insight into the President’s unethical (and apparently criminal) behavior. But for the fact that he is the sitting president, he would, most likely, be an indicted criminal at this time. Ultimately, however, it will be up to Americans themselves to determine how they will respond to these findings in the 2020 presidential election.