There have been several good analyses of the Mueller Report Volume II on obstruction of justice. Let’s review some of them.
Quinta Jurecic, the Managing Editor of Lawfare, breaks it down in Obstruction of Justice in the Mueller Report: A Heat Map:
The Mueller report describes numerous instances in which President Trump may have obstructed justice. A few days ago, I threw together a quick spreadsheet on Twitter to assess how Special Counsel Robert Mueller seemed to assess the evidence.
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The key question is how Robert Mueller and his team assessed the three elements “common to most of the relevant statutes” relating to obstruction of justice: an obstructive act, a nexus between the act and an official proceeding, and corrupt intent. As Mueller describes, the special counsel’s office “gathered evidence … relevant to the elements of those crimes and analyzed them within an elements framework—while refraining from reaching ultimate conclusions about whether crimes were committed,” because of the Office of Legal Counsel (OLC)’s guidelines against the indictment of a sitting president.
The below heat map is an effort to simplify Mueller’s analysis of the evidence in relation to the three common elements of the obstruction statutes. Instances of possibly obstructive conduct are identified by their section marking in Volume II of the report. (Section A is a general overview of the Trump campaign’s response to public reporting on Russian support for Trump and does not contain an analysis.) Some sections contained varying analysis of multiple possibly obstructive acts, which are identified separately. More information about how the special counsel assessed each possible instance of obstruction is available below the chart itself, with page numbers corresponding to Volume II.
I should emphasize that the below is my interpretation of the evidence as Mueller seems to provide it—others may have different readings. (Richard Hoeg has provided a slightly different take, also available on Twitter.) My assessment rests on an assumption that Mueller is correct in his legal analysis that a president may still obstruct justice even if the act in question is taken entirely under his Article II authority. Under Attorney General William Barr’s reading of Article II, this heat map would look very different. I’ve also accepted at face value Mueller’s statutory argument that 18 U.S.C. § 1512(c)(2) “states a broad, independent, and unqualified prohibition on obstruction of justice,” rather than, as Trump’s personal counsel apparently argued to Mueller, covering only “acts that would impair the integrity and availability of evidence.”
Jurecic then provides a detailed analysis of each of these alleged incidents of obstruction of justice, far too lengthy to set forth in this post. For our purposes, Jurecic concludes that Robert Mueller established evidence of four instances of obstruction of justice beyond a reasonable doubt for which Trump would have been charged with obstruction of justice by the Special Counsel but for the Office of Legal Counsel (OLC)’s guidelines against the indictment of a sitting president (quick summary):
E. Efforts to fire Mueller: “Substantial evidence” indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct[.]”
F. Efforts to curtail Mueller: “Substantial evidence” indicates that Trump’s efforts were “intended to prevent further investigative structiny of the President’s and his campaign’s conduct.”
I. Order to McGahn to deny Trump’s order to fire Mueller: “Substantial evidence” indicates that … the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny” of Trump.
J. Conduct toward Flynn, Manafort, and unknown individual (Stone?): Regarding Manafort, “there is evidence that the President’s actions had the potential” to influence Manafort’s thinking on cooperation, and his public statements “had the potential to influence the trial jury.” “[E]vidence … indicates that the President intended to encourage Manafort not to cooperate with the government,” though “there are alternative explanations” for Trump’s comments during the Manafort trial.
Aaron Blake at the Washington Post begins his analysis with Quinta Jurecic’s work above, and adds Richard Hoeg, referenced by Jurecic. The 5 crimes Mueller suggests Trump could be charged with:
[I]f you look closely at Mueller’s words, there’s an argument to be made that he is effectively accusing Trump of at least four and possibly five obstruction of justice offenses. Or, to be more circumspect, you could say he detailed four to five acts that would meet the legal threshold to be charged as crimes — if Trump weren’t president of the United States.
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[H]ere’s a similar chart from lawyer Richard Hoeg, who uses green to signify the criteria that have been satisfied:
As you can see, there are some differences in the charts. Part of that is because Hoeg used a binary, “Yes”-or-“No” system, while Jurecic used a more nuanced one. Jurecic also separates out the last two areas, which are multifaceted and are also broken into pieces by Mueller’s report.
Another reason for that is this is a subjective exercise. Jurecic’s analysis is worth a read, but I decided to go through all 10 analysis sections to decide for myself. And I found that, in five of the 10 areas, Mueller seems to see believe that all three criteria to charge a crime are supported by evidence.
Here’s a breakdown (quick summary):
1. Trump’s conduct toward Paul Manafort’s cooperation: “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.” [W]hen it comes to Manafort’s cooperation with the government, Mueller says all three criteria for obstruction are supported by evidence. Unlike some of the ones below, though, he doesn’t call it “substantial evidence.”
2. Efforts to have Donald McGahn deny that Trump tried to fire Mueller: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”
3. Efforts to curtail the Mueller probe: “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”
4. Efforts to fire Mueller: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct — and, most immediately, to reports that the President was being investigated for potential obstruction of justice. . . . [Trump’s] denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”
5. Conduct involving Michael Cohen: This one might be the most tenuous of the five potentially chargeable offenses Mueller lays out. Mueller doesn’t say the “evidence supports” or that “substantial evidence” supports conclusions that Trump’s actions were criminal. He instead repeatedly refers to how the evidence “could support an inference” of an obstructive act and “could support the inference” of corrupt intent. But he doesn’t land firmly on whether those inferences are the most compelling explanations.
[O]n each of [these charges], Mueller seems to believe that the three criteria to potentially charge and prove a crime have been satisfied. And on Nos. 2, 3 and 4, he seems to be pretty firm about it.
Charlie Savage of the New York Times analysis, Did Trump Obstruct Justice? Mueller Didn’t Say, but Left a Trail to the Answer:
Mr. Mueller stopped short of concluding whether Mr. Trump committed that crime, but the report made clear that others can use the evidence to make that call. Mr. Mueller’s investigators made an oblique reference to possible impeachment proceedings and noted that after Mr. Trump leaves office, he will lose the temporary immunity the Justice Department says sitting presidents enjoy. Mr. Mueller cited that factor as barring him from making accusations now.
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Here is a look at several of the more significant events the report explores (quick summary):
Trump tried to fire Mueller: Bottom line: While Mr. Mueller hedged a bit on the first of the three criteria, the report suggests there is sufficient evidence to ask a grand jury to consider charging this act as illegal obstruction.
Trump pushed McGahn to deny the attempt to fire Mueller: Bottom line: The report suggests there is sufficiently plausible evidence to ask a grand jury to consider charging Mr. Trump with attempted obstruction.
Trump encouraged Manafort not to cooperate: Bottom line: The report suggests there is sufficiently plausible evidence to ask a grand jury to consider charging Mr. Trump with obstruction.
Trump tried to gut the investigation: Bottom line: The report suggests there is sufficiently plausible evidence to ask a grand jury to consider charging Mr. Trump with attempted obstruction.
There appears to be a consensus that Robert Mueller identified four, and possibly five, charges of obstruction of justice that would have been brought against Donald Trump but for the Office of Legal Counsel (OLC)’s guidelines against the indictment of a sitting president.
This is in addition to the Southern District of New York having identified Donald Trump in Michael Cohen’s prosecution as “Individual-1,” an unindicted coconspirator in a criminal conspiracy to violate campaign finance laws. Why didn’t prosecutors simply name the president as the man who directed Cohen to make those payments? Michael Cohen named Trump as ‘Individual-1’. Here’s why prosecutors haven’t identified him in court.
The U.S. Attorneys’ Manual (a guidebook for federal prosecutors) supplies an answer:
“Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment [or other court document] in order to fulfill any legitimate prosecutorial interest or duty…. In any indictment where an allegation that the defendant conspired with ‘another person or persons known’ is insufficient, some other generic reference should be used, such as ‘Employee 1’ or ‘Company 2.’”
So, prosecutors adhered to the rules when they referred to the president as “Individual-1.”
These chargeable and impeachable criminal offenses do not even include the additional criminal charges that Donald Trump is racking up just this week in blocking the release of his tax returns to the House Ways and Means Committee Chairman, Section 7214(a) of the tax code, see Donald Trump defies Congress and federal law for his tax returns and financial records; and his obstruction of Congress and contempt of Congress, see Trump’s contempt of Congress is exactly the same as led to Articles of Impeachment against Richard Nixon.
Additionally with respect to former White House counsel Don McGahn, Lawyer Who Represented Nixon Says Trump’s Retaliation Could Land Him In Prison For Ten Years:
William Jeffress, who represented Richard Nixon after he left the White House, says Trump retaliatory action against Don McGahn could land him in prison for ten years.
Jeffress said during an interview with MSNBC’s Rachel Maddow, “Well, through his tweets if nothing else, president trump has made it clear that he is furious at a number of people, certainly including Don McGahn, including Michael Cohen, likely including others who provided information to Mr. Mueller. And that information made its way into the report and was embarrassing to president trump. Now there is a criminal statute on the books. It’s called retaliation against witnesses [18 U.S. Code §1513(e).] It punishes anybody who takes action to retaliate against a witness who has provided truthful information to law enforcement authorities. And president trump and his lawyers have got to be very cautious in taking any action other than words against any of these people who he is angry at.”
[Maddow added that] “we have seen at least one act taken by the White House in that they have fired Don McGahn’s law firm with some white house anonymous sources telling reporters that that was taken specifically in response to Don McGahn essentially becoming an enemy of the White House based on his testimony.”
See, Trump campaign punishes Don McGahn’s law firm: “Taking business away from Jones Day is payback, these advisers say, for McGahn’s soured relationship with the Trump family and a handful articles in high-profile newspapers that the family blames, unfairly or not, on the former White House counsel.”
Jeffress answered, “The way the statute reads is if the president causes any harm to an individual in retaliation for his testimony, that’s a criminal offense carrying a prison sentence of up to ten years. And, yes, I think if you caused the firing of a law firm that caused harm to the witness and you did that specifically with intent to retaliate against the witness’ testimony, that would unquestionably be a crime.”
Donald Trump’s rap sheet is already as long as his arm and is growing longer every day he remains unchecked. We have an unindicted criminal occupying the White House only because of the legally flawed Office of Legal Counsel (OLC)’s guidelines against the indictment of a sitting president.
Trump can be prosecuted when he leaves office — and let’s be honest, his final lawless act will be granting himself a full and unconditional pardon, a dubious constitutionally permissible act — or he can be impeached by Congress. How many crimes are enough crimes before Congress is compelled to impeach?