Shane KiteThe question of whether President Donald Trump obstructed justice into the Russian election investigation remains unresolved, according to a four-page summary of Special Counsel Robert Mueller’s report sent to Congress minutes ago by Attorney General William Barr.
But Barr quoted Mueller’s report as saying: “The investigation did not establish that the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
The full contents of the Mueller report details Mueller’s nearly two-year long probe into the potential collusion between the Trump campaign and Russia to sway the 2016 presidential election to Trump and Trump’s alleged efforts to obstruct that investigation.
Regarding obstruction:
“The Special Counsel states that ‘while this report does not conclude that the President committed a crime, it also does not exonerate him,” the summary says.
“After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined to not make a traditional prosecutorial judgement. Therefore, the Special Counsel did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction.
“Instead, for each of the relevant [potential obstruction] actions investigated, the report sets out evidence on both sides and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”
But Barr, in what is guaranteed to be a controversial decision, said he decided Trump had not obstructed justice by citing the absence of an underlying crime, which is not required for an obstruction charge to stick.
While Barr is careful to emphasize that the lack of an underlying crime was “not determinative,” he emphasizes it regarding how he and other Trump justice officials viewed Trump’s intent.
“In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.
“Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding. In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgement, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.”
Barr states prior that he and Deputy Attorney General Rod Rosenstein, made this determination “without regard to… [nor] based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Obstruction charges and convictions, however, can and do happen regardless of the substance of the underlying criminal allegations involved. An oft-used example is Martha Stewart, who was charged with and convicted of obstruction but not insider trading, which was the underlying crime for which she and her broker were being investigated.
That Barr also seems to have relied so heavily on the fact Trump was public in some of his actions and statements which more than a few legal experts deemed to have been obstructive to the Russia-election inquiry, requires myriad assumptions on Barr’s part. One of those is that Trump realized the potential legal risks he was taking when he said and did such things. In other words, under Barr’s assumption, for Trump to be truly acting in such an “uncorrupt” way, he would have to know the potential ramifications of publicly saying such things.
In effect, Barr argues that ‘nobody would say such things publicly if their intent was truly meant to obstruct the inquiry. Essentially: ‘Why would he say these things if he knew they could get him in trouble, unless his intentions were innocent (uncorrupt)?’
But that ascribes a rationality to Trump that may not exist.
Ignorance: What Say You?
Another of Barr’s presumed assumptions in this regard says the opposite, and may arise directly out of one of the most criticized defense strategies employed by Trump loyalists immediately after Trump fired then FBI Director James Comey on May 9, 2017.
And that is ignorance. Specifically, Trump’s alleged ignorance of the law.
However, it’s a longstanding legal principle that ignorance of the law is no defense; so old there’s Latin for it: ignorantia juris non excusat. And while it is allowed to be deployed as a defense in some cases that require specific intent, the case law that references obstruction is weighted heavily against its valid use. For instance, ignorance is specifically deemed invalid as a defense in witness tampering cases, which neither require a pending legal proceeding nor even that “the defendants actions have the intended obstructive effect” to be considered obstructive.
More importantly, even if Trump’s ignorance could be deployed as a defense for obstruction, he was an avid, admitted consumer of the huge volume of media coverage that explicitly told him and everyone else that his public and private actions and statements could be viewed as obstruction. That obstruction talk began in earnest immediately after it was reported Trump had fired Comey. Not only had Trump discussed Comey’s firing with six advisers, including then White House Counsel Don McGahn, and then Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, but he also was being told, if not by aides and counsel (which is hard to believe that they weren’t advising him of obvious legal risks) but certainly then the entirety of the U.S. media, that firing the head of an investigation into his campaign’s alleged links to Russian interference in the 2016 election could at least have the appearance of something illegal – namely “obstruction.”
And Trump certainly knew of this law by the time he sat down two days later on May 11 with NBC’s Lester Holt when Trump told Holt he was thinking of the Russia investigation when he fired Comey, and that he had actually already made up his mind to do so before he spoke to his advisers and before Rosenstein composed a statement that blamed the firing instead on Comey’s handling of the investigation of Hilary Clinton’s emails, which was apparently a ruse.
Those obstruction accusations gained steam earlier on the day of the Holt interview, when it was first reported that Trump asked Comey for loyalty over a Jan. 27, 2017 dinner that occurred as the Russia-election investigations were already underway. Trump surely got the idea he was perhaps tightrope-walking on charges of obstruction when the New York Times reported May 16, 2017 that Trump asked Comey to stop investigating Trump’s National Security Adviser at the time, Michael Flynn.
And if not then, then it’s as much as irrefutable as anything can get that Trump knew a legally sufficient amount about our obstruction laws and how he might risk breaking them when he unsuccessfully tried to fire Mueller a month later, and only relented from doing so when McGahn threatened to quit his post as White House Counsel because, McGahn said, it would strengthen obstruction allegations against Trump to the point of being catastrophic to his presidency.
Corrupt intent:
Even more importantly, the courts have generally determined that the “corrupt intent” test can be satisfied simply “when the natural and probable effect of the defendant’s conduct is to obstruct justice,” according to a legal analysis by white collar defense attorneys and Goodwin Procter partners, Richard M. Strassberg and Roberto M. Braceras, writing in the May 2002 edition of White Collar Crime Reporter.
Also, the meaning of “corrupt” intentions under the obstruction of justice statute in Section 1505 of the U.S. criminal code, says a violator only needs to be “acting with an improper purpose, personally or by influencing another.”
Barr also makes no mention of Trump privately telling Comey on Feb. 14, 2017 to drop the investigation into Flynn, who is due to be sentenced this month after pleading guilty to lying to the FBI about his contacts with Russian government officials and failing to register as a foreign agent when he was on the payroll of the Turkish government during the 2016 U.S. presidential campaign.
“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told Comey. Trump had fired Flynn (who officially resigned) the day before for, Trump said at the time, both lying to Mike Pence and lying to the FBI
Pending or contemplated proceedings:
Additionally, a legal proceeding against Flynn by then was surely “contemplated,” as required for the specific charge of obstruction, by Trump: The Washington Post had already run a story describing Flynn’s lies and legal jeopardy. And more than a month before, McGahn had both told the Trump transition team Flynn was under investigation by the DoJ and warned Trump of Flynn’s legal troubles, as early as December. And even Trump’s own personal lawyer at the time, John Dowd, said Trump knew by January 2017 that Flynn had given the same inaccurate info to the FBI as he did Pence. In fact, the DoJ had been investigating Flynn for his foreign dealings since Nov. 8 and notified Flynn of that fact Nov. 30.
So multiple investigations – or pertinent “proceedings” – were well underway and known to Trump and the White House.
Federal prosecutors by the way, not just the FBI, started investigating Flynn immediately after an Election Day 2016 op-ed Flynn wrote that was published on The Hill’s Web site, in which Flynn disparaged a cleric living in Pennsylvania named Fethullah Gulen, who Turkey blames for instigating a failed coup on its government. Flynn’s company was paid $530,000 to write that piece by a Turkish businessman with links to Russia and do other work in an overall smear campaign against Gulen.
These proceedings count:
The fact it was federal prosecutors and not just the FBI who were investigating Flynn at the time Trump asked Comey to back off the probe of Flynn is significant. That’s because, while it’s doubtful a 37-year-old district court ruling known as Higgins, which essentially said FBI probes don’t count as “proceedings” could successfully serve as a get-out-of-legal-jeopardy tactic for Trump, the fact that federal prosecutors and a grand jury were involved in the Flynn-Turkey case would render moot any such arguments by Barr.
A grand jury in the Eastern District of Virginia had already issued subpoenas in April 2017 in that case to Flynn’s business associates – work Mueller soon after took over, Reuters reported on June 2, 2017.
So that Virginia grand jury had been working for weeks on Flynn’s illegal Turkey dealings when Trump fired Comey, after asking him for loyalty and to back off of Flynn. The convening of that Virginia grand jury also was certainly contemplated at the very least and likely “pending” as well, if not already working, when Trump asked Comey to let Flynn go. And again, federal prosecutors began investigating Flynn months before, on Election Day.
The FBI officially opened its counterintelligence investigation of links between Trump’s campaign and Russia’s interference operation in the 2016 U.S. presidential election in July 2016. However, the FBI and U.S. intelligence agencies had been working together in a pre-existing group known as the Kremlin Task Force, which also included the CIA, the DoJ, the NSA and the Treasury Department, which began investigating in their various capacities links between the campaign and Russia after the CIA received intelligence from Estonia in April 2016 that “a Trump associate met with a pro-Putin member of the Russian parliament” (please view here this excellent Trump-Russia timeline by the Daily Kos). The first approval for a FISA eavesdropping warrant, which enabled the task force to wiretap persons in their work for the Trump campaign was approved in October 2016, although the group had unsuccessfully sought FISA approvals to do so since May.
Back to Intent:
Logic also requires that one could easily make the exact opposite conclusion as Barr’s regarding Trump’s public statements: For instance, that, when Trump told NBC’s Lester Holt on air that he fired Comey in essence because the “thing with Trump and Russia is a made-up story,” can just as easily be viewed as a public avowal of a purposeful intent to obstruct the probe.
The same could be said of when Trump told two Russian diplomats in the Oval Office on May 10 that the firing of Comey took great pressure off him he was otherwise facing from the Russia-election investigation.
Trump spelling his intent out publicly seemed to sway Barr though that Trump’s intentions were not corrupt, even though Trump seemed to be saying he fired the head of the FBI because Comey was heading up an investigation into Russian collusion that focused on any links to the Trump campaign, not just Flynn.
It’s incredibly hard to believe Barr doesn’t view Trump’s attempted firing of Mueller as corrupt intent or an attempted act of obstruction.
But Barr’s credibility in these matters is under heavy scrutiny, as he made a decision in a mere 36 hours without being asked to, of whether Trump obstructed justice – a choice Mueller refused to make after nearly two years of investigations.
Trump also appointed Barr as attorney general 6 months after Barr sent a controversial memo to Rosenstein, the overseer of the Trump-Russia investigation, on June 8, 2018, arguing that it was impossible for the president to obstruct justice. But Barr has for decades been a public proponent of expanding presidential power to places where, in his view, it cannot be touched by Congress, despite the Constitution demanding our legislature do exactly that – provide a check against executive power.
Given the appearance of what seems a fairly strong bias that favors the president, it’s hard to fathom that Barr can be viewed as a fully credible decision-maker in these matters, and it’s therefore unlikely his decision will stand up to objective scrutiny.
It’s also unlikely Barr will get to be the final arbiter on the findings of the Mueller report, particularly as many in the public and certainly the majority in the Democratic-controlled House, will find questionable Barr’s reasoning on the obstruction issue in particular, and demand the release of the full report.
It’s additionally unlikely that Barr can hold back or redact any info from the full Mueller Report that touches upon obstruction: As no such evidence – Trump’s potential obstructive behavior – can convincingly be said to have any bearing on grand juries or national security. And citing executive privilege on matters of obstruction would be viewed as tantamount to covering up evidence that led Mueller to be unable to exonerate Trump of obstruction in the first place.
That said, it’s unclear if there will be too many hurdles to the full report’s release after all, given that, according to the Mueller report’s findings, there’s a lack of evidence – insufficient to trigger indictments at least in Mueller’s eyes – showing Trump and his campaign coordinated with Russia to sway the election.
