I finally finished reading Special Counsel Robert Mueller’s Report On The Investigation Into Russian Interference In The 2016 Presidential Election (at least the portions that were not redacted). This is a summary of the principal conclusions I reached from reading it: no collusion, yes obstruction. Allow me to elaborate.
I speculated before the release of the Mueller report that Mueller had a “smoking gun” that would prove beyond a reasonable doubt that Donald Trump conspired with Russia to influence the 2016 presidential election. It turns out that I was wrong about that. I was surprised to discover that Mueller uncovered no concrete evidence that Trump actively and directly conspired with any Russian agents to that end. In fact, there is little information in Volume I (the part about Russian interference) that was not already part of the public record from investigative reporting, indictments, and guilty pleas. Therefore, I accept Mueller’s contention that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
I used the term “no collusion” in the title only as a sarcastic reference to the countless times Trump said or tweeted “no collusion.” The truth is that Trump clearly colluded with Russia when he said on live TV, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”
But collusion is not a legal construct, so Mueller explicitly reported that he did not look at the evidence through a collusion lens. He looked for evidence that Trump conspired with Russia to defraud the United States. Unlike collusion, conspiracy is a crime but Mueller could not find evidence that all the elements of conspiracy as defined by federal law were met by Trump as relates to Russia’s interference in the election. So one of my principal conclusions is actually that there was no conspiracy. For all you Trump supporters to whom I said “mark my words,” now is the time for you to tell me “I told you so.”
But Mueller’s report also has a Volume II and it tells a different story. Volume II focuses on obstruction of justice and, contrary to Trump’s assertion, it does not exonerate him. It implicates Trump on at least four counts of obstruction. I’m not referring to obstruction in the vernacular; I’m talking about obstruction of justice as defined by federal law. The report cites almost a dozen incidents that seemed obstructive on their face. It sets out all of the elements that the law requires for the crime of obstruction then it carefully analyzes them against the facts. The report is fair to Trump because it calls out the cases which meet some but lack all of the elements required for a conviction of obstruction of justice. Nonetheless, the report still shows that all of the elements required for a conviction exist in at least five of the incidents.
This raises the question of how there can be obstruction of justice if there was no underlying crime of conspiracy. The law does not identify an underlying crime as one of the legal elements required for obstruction and there is a good reason for it. When agents begin an investigation, they don’t know if what they’re investigating is criminal. Sometimes even the target does not know. If the target of an investigation could legally obstruct it when there’s no underlying crime, that would give incentive for a target to obstruct when there is an underlying crime. After all, if they could obstruct the investigation well enough, they could prevent a conviction for their underlying crime, thereby resulting in justice being done for neither their underlying crime nor obstruction. That’s why it’s a crime to obstruct justice whether an underlying crime has been committed or not.
This raises another question of why the Special Counsel did not indict Trump since the report clearly lays out sufficient evidence of obstruction of justice to get a conviction. There’s no need for conjecture about this question—Mueller explicitly tells us that his reason is to show fairness to the president. The Department of Justice (DoJ) has a longstanding policy that prohibits prosecuting the sitting president. However, an indictment is an accusation that the defendant committed a crime. In normal circumstances, the trial is the defendant’s opportunity to publicly present evidence that refutes the accusation. But this is not a normal circumstance because the DoJ will not prosecute a president while he is in office, so he would not have the opportunity to publicly defend himself against accusation of a crime. Therefore, it would not be fair to Trump for the Special Counsel to implicate him while he is president. The only remedy the U.S. Constitution gives to determine if a sitting president is guilty of a crime, and for the president to defend himself against the accusation, is impeachment. Since impeachment is the purview of congress, not the DoJ, Mueller simply reported the facts and law related to obstruction with the intention that the House of Representatives use the information to decide whether or not to impeach Trump.
Although Mueller did not explicitly state as much, over 500 former federal prosecutors have signed on to a letter which states that, if Trump was not the sitting president, he would have been found guilty of obstruction of justice from the evidence laid out in Mueller’s report, saying:
Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.
Mernitz, David W., et al. “Statement By Former Federal Prosecutors”. May 6, 2019. Medium.com.
They add that “these are not matters of close professional judgment…to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.” I’m not a lawyer but I’ve read Mueller’s report, which is written in large part in layman’s terms, and it’s pretty clear to me. I agree with the 500 prosecutors referenced above that Trump is guilty of obstruction of justice.
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