Although Robert Muller’s investigation to date has concentrated on money laundering and obstruction of justice, some in the media such as Rachel Maddow try to make this sound like it is more about collusion which altered the 2016 election result despite lack of evidence of this. It was good to see that this week most of the news media concentrated on talking about obstruction rather than collusion as there is a far stronger case for obstruction of justice.
One example of the conventional wisdom in the political press comes from Politico Magazine which writes, It’s Now Likely Mueller Thinks Trump Obstructed Justice:
Thursday’s explosive New York Times story that President Donald Trump ordered the firing of special counsel Robert Mueller last June renewed the public’s focus on the obstruction of justice investigation against Trump, which will soon culminate in Trump’s interview by Mueller. The case against Trump has grown stronger in recent months, and it now appears likely that Mueller will conclude that Trump obstructed justice…
Impeding or influencing an FBI investigation is a crime only if it is done with “corrupt” intent—in other words, the intent to wrongfully impede the administration of justice. In my experience, proving a defendant’s intent without direct evidence—that is, without statements by the defendant that directly reveal his or her intent—is challenging.
One could argue that Trump provided direct evidence when he told NBC’s Lester Holt that he was going to fire Comey regardless of the recommendations of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, and that he was thinking of “this Russia thing” when he did so. But Trump quickly followed up that comment by indicating that he thought the investigation was bogus, and his defense to obstruction could be that he genuinely believed the Russia investigation was meritless.
Before bringing a case, prosecutors anticipate defenses like that one and gather evidence to rebut potential defenses. We have since learned of very substantial additional evidence that would rebut that defense, or a defense that Trump didn’t understand the consequences of firing Comey. While that evidence is indirect, Mueller could argue that we can infer Trump’s intent from that evidence, which is how prosecutors typically prove a defendant’s intent.
For example, last spring, Trump reportedly asked Sessions if the government could drop the criminal case against former Sheriff Joseph Arpaio, whom Trump later pardoned. According to the Washington Post, Sessions told Trump that would be inappropriate, and Trump decided to let the case go to trial and pardon Arpaio if he was convicted. Mueller could argue that this suggests that Trump is serious about killing investigations of his friends. A pattern of behavior is always a stronger indicator of intent than a one-off action.
We also learned that, according to the New York Times, in March—two months before Trump fired Comey—he ordered White House Counsel Don McGahn to stop Sessions from recusing himself. When McGahn was unsuccessful, Trump reportedly erupted in anger, saying he needed Sessions to “protect him” and “safeguard” him, as he believed other attorneys general had done for other presidents. These are very odd statements by Trump that Mueller could argue indicate that Trump wanted Sessions to impede or even end the Russia investigation to “protect him.”
…As we learned Thursday in the New York Times, there was indeed a need to protect Mueller back in June, when Trump ordered the firing of special counsel due to “conflicts of interest” that were not actually conflicts and appear to be thinly veiled excuses to get rid of Mueller. Trump also considered firing Rosenstein and replacing him with Associate Attorney General Rachel Brand, the No. 3 Justice Department official, so she could oversee Mueller. According to the Times, Trump has wavered for months about whether he wants to fire Mueller, which is an “omnipresent concern among his legal team and close aides.”
This is an important piece of evidence because it comes after Trump fired Comey and learned that he was under investigation for obstruction of justice. It should be easy for Mueller to prove that Trump read or viewed legal analysis discussing the possibility that Trump obstructed justice by firing Comey. Trump’s desire to fire Mueller despite knowing that firing a law enforcement official overseeing the Russia investigation could raise obstruction concerns is strong evidence that Trump’s intent was to obstruct the investigation. The excuses offered by Trump also bolster Mueller’s case, because they indicate that the president realized that firing Mueller to impede the investigation would be perceived as wrongful.
While we don’t know all of the evidence, Thursday’s revelation suggests it is likely Mueller will conclude that Trump obstructed justice. Some conservative legal commentators have argued that Trump’s constitutional authority to fire personnel and end investigations is so vast that he cannot obstruct justice as a legal matter. Most legal scholars find that argument unpersuasive, but it is an academic point—not one that is decisive—because Mueller has pressed forward in investigating the firing of Comey as obstruction of justice and the power of Congress to impeach Trump goes beyond the text of any statute.
Even if Mueller concludes that he could prove beyond a reasonable doubt in court that Trump was guilty of obstructing justice, I believe he will ultimately present the matter to Congress for potential impeachment instead. After all, according to the New York Times, former independent counsel Kenneth Starr possessed a legal memo concluding that he had the power to indict former President Bill Clinton but did not do so, ultimately choosing to present the matter to Congress. I think Mueller would likely do the same thing, because it’s the more prudential approach given that it’s an open legal question whether a sitting president can be indicted.
Many other publications have similar reports, such as Jeffrey Toobin writing at The New Yorker that The Answer to Whether Trump Obstructed Justice Now Seems Clear.
It has been clear for months that Mueller has been concentrating on money laundering and obstruction of justice based upon his indictments to date and the types of attorneys he has hired. We do know that Donald Trump’s son and son-in-law attended a meeting with Russians after being enticed with promises of information about Hillary Clinton, with no information actually available. This diminishes any claim from Trump that he was above collusion (assuming he was aware of the meeting), but no evidence of any actual meaningful collusion has yet to be presented, while much of the evidence obtained argues against this. Despite MSNBC repeatedly billing the investigation as one into Russian tampering with the election for over a year, Mueller has only hired a single prosecutor who specializes in cyber crimes, and this was not even done until earlier this month.
It would make a major change in the case if it could be proven that the Russians not only hacked the DNC computer but did so with collaboration from the Trump campaign, but there is zero evidence of this to date. Meanwhile, the information obtained through the Congressional hearings has shown that claims about Russian tampering with the election have been highly exaggerated. Similarly multiple media reports of Russian hacking were subsequently retracted as false. We definitely should be talking about obstruction of justice, and money laundering, if interested in a fact-based discussion of Trump’s crimes and the Russia investigation, rather than using Russia as an excuse for Clinton losing the 2016 election.