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This Is What Obstruction Looks Like

April 18, 2019
This Is What Obstruction Looks Like
(Illustration by Hannah Yoest / photos: GettyImages / Shutterstock)

Now we know why the pre-spin was so important for Trump World.

While the Mueller report does not find evidence of a criminal conspiracy between the Russians and the Trump campaign, the picture it paints is, frankly, devastating: its narrative exposes a cascade of lies, coverups, and corruption, while providing a clear road map to the president’s attempts to obstruct the investigation. At times it reads like an open invitation to Congress to launch impeachment proceedings.

It’s that bad.

Many of us had come to doubt whether Attorney General William Barr was a reliable narrator here, but his attempts to pre-empt the report turned out to be both bizarre and inept. His press conference this morning undoubtedly won him plaudits from his audience of one in the White House, but effectively destroyed his reputation as an honest broker.

An hour and half before the release of the report, Barr tried to rationalize Trump’s behavior by saying that his efforts—which included bullying witnesses, attempting to fire the special counsel, and repeatedly lying to the American people—were all the result of his sincerity. Trump, he argued, was sincerely angry when he sought to limit, control, and shut down the criminal probe.

Sounding for all the world like Trump’s personal lawyer, Barr argued that it was “important to bear in mind the context. President Trump faced an unprecedented situation.”

As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability.

Barr insisted that there was “substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”

This is an odd argument on several levels: undoubtedly many people who commit crimes are sincere in their belief that they are justified, just as many authoritarian rulers or mob bosses can be quite sincere in their belief that they are justified in lying or obstructing justice. At the same time, Barr also seems to be suggesting that the president of the United States was too emotional to control his behavior. He couldn’t help himself.

Nonetheless, the attorney general argued Thursday morning that the “White House fully cooperated with the Special Counsel’s investigation.” Moreover, he said, Trump had taken no action that had

in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

This is, frankly, amazing.

Barr’s spin doesn’t survive even the most cursory reading of the actual report, which declared that Trump “engaged in efforts to curtail the Special Counsel’s investigation and prevent the disclosure of evidence to it, including through public and private contacts with potential witnesses.” (page 8)

There’s so much more:

Many of the president’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. . . .And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened . . .

Our investigation found multiple acts by the President that were capable of exerting undue influence over . . . investigations . . . the incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. (page 157)

And Mueller explicitly does not rule out the possibility that some of those efforts succeeded. The report says “the investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation.” (page 17)

The damage might have been worse had Trump’s attempts not been thwarted by some of his own staff:

The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. (Page 370)

And Mueller actively does not exonerate Trump: “[I]f we had confidence after a thorough investigation of the facts that the President did not obstruct justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgement.” (page 182.)

Mueller’s report suggests that any judgment about Trump’s motives should be “informed by the totality of the evidence.” The totality of evidence is damning.

The report’s narrative on Trump’s efforts to obstruct the investigation is broken down into several sections:

  • The Trump campaign’s response to reports of Russian support (which largely consisted in denying and lying about them).
  • Trump’s conduct involving former FBI director James Comey and Michael Flynn.
  • Trump’s reaction to the continuing Russia investigation.
  • Trump’s termination of Comey over the Russia probe.
  • The appointment of Special Counsel and Trump’s repeated efforts to fire him.
  • Efforts to curtail the Special Counsel’s investigation.
  • Efforts to prevent public disclosure of evidence (including his attempts to cover up the June 2016 Trump tower meeting and to lie about to the public).
  • Trump’s further efforts to have Attorney general Jeff Sessions take control of the investigation and limit it.
  • Trump’s efforts to have White House counsel Don McGahn lie by denying that Trump had ordered him to have Mueller fired.
  • Trump’s conduct toward Michael Flynn, Paul Manafort and another person whose name is redacted (including dangling pardons).
  • Trump’s conduct toward Michael Cohen.

Mueller’s report argues that Trump’s efforts to impede the investigation can be divided into two broad time periods: basically before and after his firing of the FBI director.

Early in the report on obstruction, Mueller says that the evidence “indicates that the President wanted to protect himself from an investigation into his campaign. In addition the president had a motive to put the FBI’s investigation behind him.” Nevertheless, it concludes, the “evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump campaign and Russia.” (page 76)

But, the report says, things changed shortly after the president fired the FBI director, when Trump became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct. This awareness marked a significant shift as “the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.” (page 219)

This included his attempts to fire the special counsel and have Attorney General Sessions un-recuse himself and limit the probe. Trump also “sought to prevent public disclosure of information about the June 9, 2016 meeting between Russians and campaign officials; and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government.” (page 158)

In his four-page letter and press conference, Barr had insisted that Trump did not obstruct justice because he was not guilty of any underlying crime. Mueller explicitly rejects this argument. Trump, Mueller writes, had more than enough motive to try to impede the investigation:

As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. [Emphasis added.] (page 76)

According to Mueller, Trump’s efforts included public attempts to intimidate witnesses. For example, Trump’s repeated suggestion that members of his former attorney Michael Cohen’s family committed crimes, “could be viewed as an effort to retaliate against Cohen and chill further testimony adverse to the President by Cohen or others,” Mueller’s team writes. “The timing of the statements supports an inference that they were intended at least in part to discourage Cohen from further cooperation.” (page 156)

The report also suggests that Trump had dangled pardons to potential witnesses. The report says that “Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message he would be taken care of. But after Cohen began cooperating with the government in the summer of 2018, the President publicly criticized him, called him a “rat.” (page 6)

Likewise in January, 2018, Paul Manafort told a colleague that he had “talked to the President’s personal counsel & they were ‘going to take care of us.’”

Mueller’s report also documents Trump’s efforts to fire Mueller:

“Substantial evidence . . . supports the conclusion that the President . . . directed McGahn to call Rosenstein to have the Special Counsel removed. First, McGahn’s clear recollection was that the President directed him to tell Rosenstein . . . ‘Mueller has to go.'”

According to the report, after Trump ordered McGahn to call Rod Rosenstein and have Mueller fired, McGahn “called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter . . . told Priebus that the President had asked him to ‘do crazy shit.'” (Page 300)

Does all of this constitute obstruction? The implications seem clear; if Donald Trump was not the sitting president, the case against him would be overwhelming. Indeed, Mueller goes out of his way to note that Trump could face criminal charges after he leaves office. Even though the Office of Legal Counsel has decided that a sitting president cannot be prosecuted, Mueller says pointedly, “it recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that a President does not have immunity after he leaves office.” (Page 335)

And in a passage that seemed directly addressed to Congress, Mueller writes:

[W]e concluded that Congress has the authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice . . . The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” (Page 8)

None of this good news for Trump.

Charlie Sykes

Charlie Sykes is a founder and editor-at-large of The Bulwark and the author of How the Right Lost Its Mind. He is also the host of The Bulwark Podcast and an MSNBC contributor.