The unabashed arrogance on display at Mueller’s news conference was breathtaking. He refused to take any questions from the media, which is his right. But he then boldly announced that he would not answer questions from Congress “beyond our report.” This is neither his right nor his prerogative. It was remarkably presumptuous for him to say he would not do so. Congress can command under subpoena that he appear to answer any and all questions about the evidence he gathered, the witnesses he interviewed, and the conclusions he reached in his report. There is no immunity for a special counsel. Does Mueller believe he is above criticism and reproach? For the better part of two years, he spent tens of millions of taxpayer dollars investigating “collusion” and obstruction, only to decide one but not the other. Congress had every right to demand that Mueller explain many of his inexplicable actions.
When Mueller eventually relented under a subpoena and appeared before Congress, he muddled his testimony on the extent to which the OLC opinion influenced, if at all, his decision not to decide obstruction of justice. During the morning session, he seemed confused and unsteady when he agreed with Representative Ted Lieu’s (D-CA) statement that he “did not charge the president because of the OLC opinion.”195 During his opening remarks in the afternoon, he amended his earlier testimony by saying, “That is not the correct way to say it.” He added, “As we say in the report and as I said at the opening, we did not reach a determination as to whether the president committed a crime.”196
The whole of Mueller’s disoriented testimony that day raised serious questions. He appeared detached and confused. It was obvious that he had not written the report that bore his name and may not have fully understood its contents. If so, Mueller may have been little more than a figurehead who was exploited by the partisans on his team.
Even Accepting Mueller’s Flawed Premise, He Has No Obstruction Case
Having established here that Mueller’s view of the law and regulations were distorted and wrong, let’s assume for the sake of argument that he was correct—that a president can nevertheless obstruct justice while executing his constitutional authority. The facts presented in the special counsel report still do not support an obstruction offense under the law. The evidence of corrupt intent was woefully insufficient. Attorney General Barr explained, “For each of these episodes we thought long and hard about it, we looked at the facts, and we didn’t feel the government could establish obstruction in these cases.”197
Obstruction of justice is defined in a series of statutes in the criminal codes.198 Proof requires that a person act “corruptly” to influence, obstruct, or impede a pending proceeding or a legal investigation.199 An attempt or “endeavor” to obstruct is also criminal.200 But the operative word is corruptly. What does it mean? It is defined as “acting with an improper purpose, personally or by influencing another.”201 Typically, it involves a lie, threat, or bribe, concealing evidence, or destroying documents. A prosecutor must prove not only that someone intended to obstruct but that it was done with a corrupt or improper purpose. Consciousness of wrongdoing must be shown. In the seminal case, Arthur Andersen LLP v. United States, the US Supreme Court further defined “corruptly” as acting with a “wrongful, immoral, depraved, or evil” intent.202 This is an extremely high standard for prosecutors to sustain.
The firing of Comey was one of roughly a dozen actions and statements by Trump that the special counsel examined for potential obstruction. Although it is obvious that Mueller presented facts in a way that allowed others to misconstrue them for political reasons, his report was notable for what it did not show: provable corrupt intent or an improper purpose behind any of the president’s actions. The report presents reasonable, logical, and legitimate explanations for every episode. The special counsel should, in good conscience, have stated that obstruction was unsupported. His refusal to do so was exactly what Attorney General Barr said was inappropriate when he testified during his confirmation hearing, “If you’re not going to indict someone . . . you don’t unload negative information about the person. That’s not the way the department does business.”203 But that was the way Mueller did business. He delivered 183 pages disparaging Trump for actions that did not amount to obstruction of justice. It was a shameful smear. But a careful reading of the Mueller Report reveals both exculpatory evidence and analysis.
The Trump-Comey Conversation
The day after the February 13, 2017, resignation of National Security Advisor Michael Flynn, Comey visited the White House. According to the director’s version of events, Trump spoke favorably about Flynn and emphasized that he “hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President.”204 That was true. Comey claimed that the president had then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy.”205 Trump insisted that he had “never asked Comey or anyone else to end any investigation, including the purported investigation of General Flynn.”206 The president characterized Comey’s account as neither truthful nor accurate. But even if it were accurate, would it be obstruction of justice? The answer is found in Mueller’s report.
The special counsel explained that under the Constitution, “The President has broad discretion to direct criminal investigations.”207 Comey acknowledged that when he told Congress that “the president is the head of the executive branch and could direct, in theory . . . anyone being investigated or not—he has the legal authority.”208
Setting aside the accuracy of Comey’s account in his meeting with Trump, did the president’s alleged words about Flynn reflect a corrupt or improper purpose? Comey answered the question when he testified before the Senate Intelligence Committee. Asked if he’d ever heard of a case where a person has been charged for obstruction for “hoping something,” Comey replied, “I don’t as I sit here.”209 The director was correct. Hoping and wishing for an outcome is not an improper purpose; it is a deliberative statement. Comey knew that the president’s words did not remotely establish an obstruction offense because he testified days before his firing that no one had attempted to interfere in any of his investigations.210 So did his deputy, Andrew McCabe. That would have included the Flynn case. After he was terminated, Comey changed his story and testified that he had thought Trump was attempting to interfere in the Flynn matter. But Comey’s interpretation of Trump’s words is immaterial; the intent of the person speaking the words proves obstruction, not how the listener may construe them. No reasonable person would find the president’s words obstructive, assuming he even said them.
If Comey truly believed the president was attempting to obstruct an investigation of Flynn, the FBI director would have said so in his self-serving memo. He did not. Moreover, he would have opened an obstruction investigation of Trump. He did not. In fact, in a March 30, 2017, phone call, Comey assured the president that he was not personally being investigated. If the FBI director felt that Trump’s alleged remark about Flynn constituted obstruction, he would not have made that statement. If the president wanted Flynn cleared, why did he not raise the issue again with Comey? He did not. No one else at the White House broached the subject, which only undermines the legitimacy of the obstruction theory.
Documents produced by the special counsel also show that the FBI agents who interviewed Flynn “did not believe he intentionally lied to them.”211 He may have been confused or forgetful about his conversations with Russian ambassador Sergey Kislyak, but he was truthful. In fact, the FBI informed Flynn that it was “closing out” the case. That was confirmed by White House Counsel Don McGahn and memorialized in his notes.212 Since Bureau agents concluded that Flynn had not lied, there was no investigation to obstruct. When the FBI appeared to have ended its investigation of Flynn, President Trump did not. He continued “gathering and reviewing the facts in order to ascertain whether Flynn’s actions necessitated removal from office,” which he thereafter ordered.213 Far from obstructing justice, the president pursued the matter and fired Flynn.
Federal courts have consistently held that “The president may decline to prosecute certain violators of federal law just as the president may pardon certain violators of federal law.”214 Trump had the right to express his opinion, public or private, about the Flynn matter without being accused of obstruction. Recent historical precedent proves it. President Obama made numerous public comments about Comey’s investigation into Hillary Clinton’s mishandling of classified emails. Obama repeatedly opined that Clinton had not jeopardized national security and suggested that she had not broken the law. No one, including Comey, accused him of attempting to obstruct the FBI’s investigation.
More than a year after the Trump-Comey conversation, when the special counsel began investigating Flynn for allegedly making false statements, there were several communications between the fired NSA and the Trump legal team. Some have suggested that the president was attempting to unduly influence Flynn’s testimony. However, Mueller concluded that the president had never been “personally involved or knew” about any of this.215
Communications with Intel Leaders
In the first three months of Trump’s presidency, media reports that the president had “colluded” with Russia escalated. That culminated in Comey’s March 20, 2017, congressional testimony in which he refused to say whether Trump was personally being investigated. Trump was frustrated that the FBI director refused to make public what he had told the president privately. In a meeting on March 22 at the White House, Trump asked then director of national intelligence Daniel Coats and CIA director Michael Pompeo “whether they could say publicly that no link existed between him and Russia.”216 A similar request was made of NSA director Admiral Michael Rogers.217 The president was asking them to tell the truth. The increasing number of media stories and concomitant condemnation by Democrats were making it difficult to govern, especially in matters of foreign relations with Russia. Coats and Pompeo declined, not because they considered Trump’s request to be criminal obstruction of an investigation. They thought it was improper for the intelligence community to get involved. Mueller’s report confirmed this when it stated, “The evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation.”218
The Firing of Comey
Trump’s firing of Comey did not constitute obstruction of justice for many of the same reasons that his alleged conversation about Flynn did not rise to the level of obstruction. His constitutional authority notwithstanding, there was no evidence of a corrupt or improper intent. The president had ample reason for discharging him. Comey’s direct supervisor, Deputy Attorney General Rod Rosenstein, spelled out several incidents of serious malfeasance by Comey in his mishandling of the Clinton email case that more than justified the decision, and the deputy AG recommended to the president that the director be dismissed.219 So, too, did the attorney general, Jeff Sessions, who endorsed the decision.220 Trump cited those reasons and recommendations in his letter to Comey dated May 9, 2017.221
Mueller determined that that stated explanation for firing Comey had been a “pretextual reason.”222 The special counsel surmised that the real reason had been that Comey appeared to have been acting with duplicity and dishonesty. The director had repeatedly assured Trump in private that he was not personally under investigation by the FBI. Yet he had refused to say so publicly when the president had asked him to simply be candid with Americans. As the special counsel observed, “the erroneous perception he [Trump] was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia.”223
Following Comey’s firing, the president sat down for an interview with NBC’s Lester Holt. During the questioning, Trump referred to the Russia probe in the same sentence as the firing of his FBI director. Instantly, the president’s opponents seized upon the televised interview as irrefutable proof of obstruction. It was not. A rigorous reading of what Trump said confirms that his intent had not been to interfere with or end the Russia investigation but to place someone who was neutral and competent in charge. “As far as I’m concerned, I want that thing to be absolutely done properly,” he told Holt.224 The president felt that Comey was “the wrong man for that position.” Trump wanted him replaced with “a really competent, capable director,” even if that meant that the Russia investigation might take longer.225 If anyone on his campaign had coordinated with Russia in a way that had violated the law, Trump said, he wanted the FBI to find out.226 The special counsel correctly cited those passages from the NBC interview, even though the media have consistently overlooked them and misrepresented the president’s words.227 Mueller even referred to a White House statement that made it clear that “the investigation would have always continued, and obviously, the termination of Comey would not have ended it.” Removing the head of an executive agency does not halt or obstruct the work of the agency.
For the better part of two years following the firing of Comey, the mainstream media and Democrats who opposed Trump at every turn argued that that action, more than any other, by the president was definitive proof of obstruction of justice. They demanded his indictment, impeachment, and imprisonment. They assured Americans that Mueller would agree. Except that he did not. Mueller wrote, “The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump campaign and Russia.”228 No conspiracy, no cover-up, and no obstruction.
Trump Tower New York Meeting
As noted earlier, the meeting between a Russian lawyer and the Trump campaign did not constitute “collusion.” However, the president’s critics, including many in the media, asserted that Trump’s involvement in issuing official statements in late June and early July 2017 about what had occurred a year earlier at Trump Tower in New York had been false or misleading and therefore somehow constituted obstruction of justice. That was always a preposterous argument for two reasons. First, the statements were not false. The subject of the meeting had ended up being the Russian policy on adoption, which is what the White House communications team had conveyed. At worst, the statements were incomplete. Second, even if the statements were outright lies, it is not a crime to lie to the media or the public at large. If it were otherwise, most politicians in Washington would be behind bars. Mueller admitted this when he stated, “they would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel.”229 And the report notes that Trump had never withheld emails or other information about the Trump Tower meeting from either Congress or the special counsel.
Trying to Get Sessions to Reverse His Recusal
Jeff Sessions was only three weeks on the job as attorney general when he held a news conference on March 2, 2017, to announce that he would recuse himself from any investigations involving Russia and the 2016 presidential campaign. He should never have done so. As explained in The Russia Hoax, neither the facts nor the law required his recusal, which applies to criminal investigations, not counterintelligence probes. Sessions set all of it into motion within hours after being sworn in and “basically recused” himself on his first day in office.230 Trump was understandably livid. He considered it a serious betrayal. “If he was going to recuse himself, he should have told me prior to taking office,” declared the disgusted and angry Trump at a Rose Garden news conference.231 He was right.
The Mueller Report recapped several face-to-face meetings in 2017–2018 in which Trump tried to convince Sessions that he should reconsider his action, reverse his recusal, and take charge of the inquiry. Contemporaneous notes show that the president told his attorney general, “I just want to be treated fairly.”232 In a subsequent meeting, Trump repeated the statement. That was not an effort to halt or obstruct the investigation. The president had publicly accused Mueller of disqualifying conflicts of interest and frequently complained that the special counsel had assembled a te
am of partisans for his investigation. Trump wanted a fair, objective, and neutral investigation; he did not want a partisan “witch hunt,” as he so often lamented in public comments and tweets. That was eminently reasonable from his point of view, and that expressed view is evidence of his intent under the law. Those statements, cited by Mueller in his report, are evidence that Trump’s purpose was not improper or corrupt. To the contrary, it was sensible, proper, and lawful.
The Mueller Report spent several pages examining the president’s intermittent efforts to force the resignation of Sessions and other steps that might “limit the scope of the Special Counsel’s investigation.”233 However, since Sessions was recused, firing him would have had no impact on the special counsel investigation. Mueller’s probe was never limited in any way.
Discussions to Remove the Special Counsel
Given Sessions’s recalcitrance, Trump discussed with his staff the notion of removing Mueller as special counsel. The report identified Trump’s intent as identical to one that had motivated his request that the attorney general reverse his recusal. That is, “The President told senior advisors that the Special Counsel had conflicts of interest.”234 At one point in June 2017, Trump allegedly telephoned White House counsel Don McGahn. According to the report, “The President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest.”235 McGahn never complied because he disagreed with the rationale, and “the President did not follow up with McGahn on his request to have the Special Counsel removed.”236 At roughly the same time, Trump received competing advice that terminating Mueller would be unwise politically. He then dropped the idea.
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