Mueller Documented Probable Cause That Trump Obstructed Justice
President Trump walks in shade on return to the White House
Mueller systematically and methodically laid out the case for obstruction of
justice against Trump.
Zach Gibson / Getty Images
By Marjorie Cohn, Truthout Published April 21, 2019
After a nearly two-year investigation, culminating in a 448-page report,
Special Counsel Robert Mueller concluded that Russia attempted to influence the
2016 election but found insufficient evidence to prove the Trump campaign
conspired with Russia. Mueller did not decide, however, if Trump obstructed
justice.
The special counsel detailed 10 acts that could constitute obstruction of
justice. But based on a memo from the Department of Justice’s Office of Legal
Counsel that says a sitting president can’t be indicted, Mueller refrained from
concluding whether the evidence was sufficient to charge Trump with obstruction.
Mueller wrote:
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.
Based on the facts and the applicable legal standards, we are unable to reach
that judgment. Accordingly, while this report does not conclude that the
President committed a crime, it also does not exonerate him.
Yet, in spite of the fact that Mueller did not say the attorney general should
decide whether Trump obstructed justice, William Barr took it upon himself to
exonerate Trump of obstruction, less than 48 hours after he received Mueller’s
report on March 23.
When the special counsel’s redacted report was made public on April 18, it
became clear that Barr had whitewashed Mueller’s analysis. Indeed, Mueller
systematically and methodically laid out the case for obstruction of justice
against Trump.
Barr Mischaracterizes the Probable Cause Standard
The standard a grand jury uses to decide whether to issue an indictment is
probable cause. Grand jurors must determine whether “a federal crime has
probably been committed by the person accused,” according to the Handbook for
Federal Grand Jurors. Once an indictment issues, a jury decides whether the
defendant is guilty beyond a reasonable doubt, which is a higher standard than
probable case.
During the April 10 Senate Appropriations Committee hearing, Sen. Jack Reed
(D-Rhode Island) asked Barr whether Mueller found probable cause that Trump
committed obstruction of justice. Although Mueller didn’t conclude whether a
crime had been committed, he stated in his report that he could not exonerate
the president. That, Reed told Barr, “suggests that there’s a possibility that
probable cause existed for a crime.”
Reed noted, “If there was no evidence of probable cause, then I would presume
[Mueller] could’ve said very clearly that there was no crime committed, that he
could in fact exonerate the president, as he seems to have done with the
allegations of conspiracy between the campaign and Russia.”
After a long pause, Barr responded, “Probable cause is a very low standard for
determining when you start investigating something. A lot of things have
probable cause.”
Barr’s characterization of the probable cause standard is incorrect. If a grand
jury finds probable cause the defendant committed a crime, it will issue an
indictment. Probable cause is not required to open an investigation.
Mueller Finds Substantial Evidence That Trump Obstructed Justice
In several places, Mueller found “substantial evidence” of obstruction of
justice by Trump. For example, Mueller wrote:
Substantial evidence indicates that the President’s attempts to remove the
Special Counsel were linked to the Special Counsel’s oversight of
investigations that involved the President’s conduct — and, most immediately,
to reports that the President was being investigated for potential obstruction
of justice.
Substantial evidence is the standard of review appellate courts use to
determine whether to uphold the findings of a lower court. If the appeals court
finds substantial evidence to support the judgment, it will affirm the
conviction.
Mueller cited the three elements necessary to prove obstruction of justice: 1)
an obstructive act; 2) a nexus [connection] between the obstructive act and an
official proceeding; and 3) a corrupt intent.
An obstructive act can be established even if there is insufficient proof of
guilt of the underlying crime. It is not necessary that the defendant impede
the proceeding directly, if it was foreseeable to the defendant that a third
person would act on the defendant’s instruction to obstruct the proceeding.
Acting with a corrupt intent means consciousness of wrongdoing, in order to
obtain an improper advantage for himself or another person.
Here is one example where Mueller found substantial evidence of Trump’s
obstructive intent:
Substantial evidence indicates that the President’s effort to have Sessions
limit the scope of the Special Counsel’s investigation to future election
interference was intended to prevent further investigative scrutiny of the
President’s and his campaign’s conduct.
Mueller wrote that Trump’s intent can be judged by looking at all the evidence:
“Judgments about the nature of the President’s motives during each phase would
be informed by the totality of the evidence.”
The offense of obstruction of justice is complete when the defendant corruptly
tries to obstruct justice. A prosecutor does not need to prove that justice was
actually obstructed.
Mueller’s report is replete with examples of Trump ordering his underlings to
obstruct the Russia investigation. He asked for former FBI Director James
Comey’s loyalty. He asked Comey not to pursue an investigation of former
National Security Adviser Michael Flynn. He asked Comey to say that Trump
wasn’t the subject of an FBI investigation. He asked former White House Counsel
Don McGahn and former campaign manager and trusted adviser Corey Lewandowski to
fire former Attorney General Jeff Sessions for recusing himself from the Russia
investigation. And he asked Sessions to un-recuse himself and announce that the
investigation would only pertain to meddling in future elections.
None of those people did what Trump asked. But the obstructive act is in the
asking, whether or not those asked actually complied with Trump’s demands.
Trump also edited a statement for Donald Trump Jr., lying about the purpose of
a June 2016 meeting between Russians and senior Trump campaign officials.
Mueller concluded, “Taking into account that information and our analysis of
applicable statutory and constitutional principles . . . we determined that
there was a sufficient factual and legal basis to further investigate potential
obstruction-of-justice issues involving the President.”
Mueller’s report painstakingly analyzes the evidence of obstruction of justice
by Trump.
In 240 pages, Mueller’s report painstakingly analyzes the evidence of
obstruction of justice by Trump. “Our investigation found multiple acts by the
President that were capable of exerting undue influence over law enforcement
investigations, including the Russian-interference and obstruction
investigations,” he wrote. “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. These actions ranged from efforts to remove the
Special Counsel and to reverse the effect of the Attorney General’s recusal; to
the attempted use of official power to limit the scope of the investigation; to
direct and indirect contacts with witnesses with the potential to influence
their testimony.”
Although Mueller doesn’t make specific findings of probable cause that Trump
obstructed justice, that’s because the Justice Department’s policy is that
sitting presidents are unindictable. “Viewing the acts collectively can help to
illuminate their significance.” Mueller wrote. If a prosecutor was inclined to
bring criminal charges, there is abundant substantial evidence against Trump,
which adds up to probable cause.
Mueller carefully analyzed Trump’s pattern of behavior and made a record for
his post-presidency indictment.
Mueller carefully analyzed Trump’s pattern of behavior and made a record for
his post-presidency indictment. The special counsel also laid out a virtual
road map for Congress to conduct impeachment proceedings. Obstruction of
justice was one of the articles of impeachment charged against both former
presidents Richard Nixon and Bill Clinton.
As Mueller wrote, “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.”