Opinion: Call It Obstruction, Robert Mueller. The Evidence Is Here.

Why did Robert Mueller pull his punches? In his report, made public Thursday by the Department of Justice, Mueller laid out significant evidence to support the conclusion that President Donald Trump committed obstruction of justice. Yet the special counsel stated that no matter what evidence he found, he wouldn’t directly say that Trump had committed a crime.

That decision, which was not required by law or by the regulation guiding the special counsel’s office, opened the door for Attorney General William Barr to say that he had determined there wasn’t enough evidence to charge Trump.

That in turn effectively killed the political possibility of impeachment, as indicated by the No. 2 Democrat in the House, Steny Hoyer, saying Thursday that impeachment isn’t “worthwhile.”

There are several possible answers to the key question. One is Mueller’s very strange argument that it would have been unfair to the president to say he committed a crime. Another is the faint possibility that Mueller actually wanted the report to have a different effect and was outsmarted by Barr’s public summary of his report several weeks ago.

But by far the most compelling explanation is that Mueller determined that he would only seek to stimulate impeachment of the president if he could prove that Trump or his campaign actively colluded or conspired with Russian intelligence.

Once Mueller concluded that he couldn’t prove active coordination or cooperation, he adopted the hypercautious stance toward obstruction of justice that appears in the final report.

Essentially, this theory goes, Mueller judged that it would be a mistake to go after the king without killing him. In the real world, no proof of collusion meant that Trump couldn’t be taken down.

The key punch-pulling passage in the report occurs on page 2 of volume 2, where Mueller says that “we determined not to apply an approach that could potentially result in a judgment that the president committed crimes.”

The sentence is so shocking I had to read it several times. Mueller is saying that his team thought about — and rejected — going through Trump’s conduct using ordinary Justice Department standards to decide if he had violated the law.

That’s more or less what the public thought Mueller was going to do.

Mueller’s stated reason is more shocking still: He wanted to be “fair” to Trump because a president cannot be indicted under Justice Department policy, and without a trial Trump couldn’t “seek to clear his name.”

The president of the United States could, of course, use the news media to defend himself. He could also be impeached by the House and defend himself in the Senate. Mueller’s “fairness” logic is contorted to the point of being almost bizarre.

Yet the report also marches through possible obstruction charges. For each charge, it recounts the evidence, then does an analysis of whether there was an obstructive act, a nexus to an official proceeding and corrupt intent. These are the elements of the crime of obstruction of justice. In other words, Mueller’s report shows where he and his team believed Trump was guilty of a crime. It just doesn’t officially draw the conclusion.

And the report does show that Mueller had evidence that Trump obstructed justice. Essentially, Trump may not have had corrupt intent at first, because he knew he was not the target of FBI Director James Comey’s investigation. Once Mueller was appointed, however, Trump “engaged in a second phase of conduct, involving public attacks on the investigation, nonpublic efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.”

Thus, for example, the report strongly implies says that Trump obstructed justice when he told White House counsel Don McGahn to fire Mueller (See volume 2, pages 87-90). Ditto for Trump trying to get his former campaign manager Corey Lewandowski to tell then-Attorney General Jeff Sessions to limit Mueller’s investigation to future election interference (volume 2, pages 97-98). There are other examples, too.

Mueller made a conscious decision to play down these suggestions by not directly calling them conclusions of Trump’s criminality.

It’s conceivable that Mueller was upright and naïve and evenhanded and got played by Barr. Maybe Mueller hoped that the report would be read closely and that the nation (including Congress) would understand that he was effectively saying Trump was guilty of crimes. Then Barr went public with his summary of the report and said that because Mueller didn’t make a determination on prosecution, he would do so —and determined that Trump shouldn’t be prosecuted. If Mueller didn’t see that coming, he walked into Barr’s trap.

But Mueller is an experienced public servant who was threatened repeatedly with being fired. It seems unlikely that he didn’t realize Barr and Trump could exploit his decision not to say Trump committed crimes.

More probably, Mueller realized that he could only bring down Trump if he could show collusion with Russia. That would have created bipartisan outrage, and simultaneously made obstruction into a more serious-seeming crime.

When Mueller concluded he couldn’t prove collusion, he decided to take the high road, even if that meant Barr and Trump could minimize his suggestions about obstruction. Trump, he may have calculated, wouldn’t be impeached anyway. History would then depict Mueller as fair-minded and nonpartisan, rather than a runaway prosecutor who tried bring down a president, and failed.

We may never know for sure what Mueller was thinking when he held back from announcing Trump committed crimes, despite having evidence to support that conclusion. The leading explanation, though, should be the adage ably expressed by Ralph Waldo Emerson, and memorably repeated by Omar on “The Wire”: “You come at the king, you best not miss.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

First Published:
Apr 19, 2019 19:20 IST

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