As Special Counsel (SC) Robert Mueller’s Investigation proceeded, it appeared that the avenue that held the most danger to President Trump was the SC’s Investigation into whether Trump had committed the crime of Obstruction of Justice.
Trump had done things clearly meant to shut down or thwart the Investigation. Had he acted with criminal, or as it is called in the law, “Corrupt” Intent?
It was that crime that had brought President Nixon to the ignominious end of his presidency.
Mueller decided not to seek an indictment of Trump on the charge of Obstruction, explaining: “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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. Accordingly, while this report does not conclude that the President committed a crime, it does not exonerate him.”
Mueller punted. He gives his reasons in Part Two of his Report. Let us examine what he says in Part Two.
The SC cites several instances of the President’s conduct that to the lay person would, certainly taken together, appear to be firm evidence of an attempt to Obstruct Justice. But the SC says the President’s Intent (or for that matter, anyone’s Intent) is important to an Obstruction charge – although not prohibitively critical.
The SC says for instance, Intent to Obstruct usually is based on a person attempting to conceal or cover up an underlying crime in which the person has been engaged. In the case of President Nixon, we hear from his own words on tape how four days after the Watergate break-in he and his Chief of Staff Bob Haldeman cooked up a false story in an attempt to cover up the real facts of the break in. Whether Nixon had or had not ordered the crime of burglary is beside the point. That Nixon was attempting to prevent the truth from coming to light in a criminal Investigation was a crime in itself and the evidence of his corrupt Intent in devising the cover up story was plain thanks to the tape.
Whereas in Trump’s case, the SC found (agree with it or not) that Trump had not engaged in a crime concerning the Russian attempts to interfere with the 2016 election, therefore taking actions to shut down or belittle the investigation might be attributed to a desire to avoid political embarrassment or avoid problems interfering with the achievement of his policy objectives or any number of non-corrupt reasons. The SC cites Trump’s constant complaint that the Investigation was a distraction that was interfering with this ability to carry out his duties (as he saw them) as president.
Many might conclude the Intent was, in fact, a corrupt one but for the SC firm evidence to prove that was not found. For instance, Trump’s re-writing of a press release to falsely describe the “Trump Tower meeting between his son, Manafort and Russian contacts might be attributable to several non-corrupt intents unless there was evidence to the contrary which the SC said he did not have.
A second problem with finding that Trump was Obstructing Justice was, according to the SC, the fact that a U S President has unique powers that the Constitution, the Law and precedents bestow on him/her that other people do not have. There are many pages in the SC’s report explaining these powers as the SC understands them.
For instance, the SC points out that President Trump could fire FBI Director Comey anytime he wanted to without offering any explanation at all. That he told Lester Holt of NBC News that when he did it he had the Russian thing on his mind does not prove his Intent was to thwart the Investigation.
The SC also notes that many of Trump’s suspicious actions took place in public view and while that would not in itself insulate him from an Obstruction charge it makes it much harder to prove a “corrupt” motive.
Time and again, the SC cites examples of Trump’s actions that could well be interpreted as attempting to intimidate witnesses and suggestions of future pardons that might be considered attempts to get witnesses to bend their testimony in his direction – a clear attempt to Obstruct. But, again, the SC said he didn’t have conclusive evidence that Trump’s motive was to save himself from being charged with a crime and thus an Obstruction charge could not be successfully prosecuted.
The SC notes that often instructions from Trump to commit acts that might in themselves more easily show a corrupt Intent were not carried out by his subordinates – the SC cites several examples including the instance when Trump’s then White House Counsel said he would resign rather than carry out an order he thought was possibly illegal – which thus saved Trump from the possible dire legal consequences to him of his orders.
Noteworthy, in every case where Trump’s Attorneys argued to Robert Mueller that the Constitution, the Law, the Precedents prevented the indictment of a U S President under the circumstances that surrounded Trump in this Investigation Mueller forcefully rejected their arguments. In every suspected point of Obstruction the SC cited in his report the reason he said he could not charge Obstruction on that point was not that anything prevented him from doing so if he had found the evidence necessary to prove the charge beyond a reasonable doubt in a Court of Law. Which he said he had not.
To me and other lay persons, to the general public if you will, Robert Mueller has written a report that says of the president and his actions – in my words – “I show you something that walks like a duck, looks like a duck and quacks like a duck. You may reasonably conclude that it’s a duck. But to discharge my duty properly, walking, looking and quacking is not enough for me to bring an indictment under the law and conditions that set a president apart from the rest of us.”
So Trump is home free? Not quite. And Mueller in his report rather artfully suggests why.
In declining to recommend prosecution for lack of evidence in a criminal trial, Mueller adds this line to his report: “Congress has authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice.”
It’s called Impeachment.
Let’s see if Congress uses Mueller’s “road map” of what he found to go Duck hunting.