While special counsel Robert Mueller declined to offer a traditional prosecution or declination decision on the question of whether President Donald Trump committed obstruction of justice, Volume II of the special counsel’s opus of a report still focuses on several specific instances of potential obstruction. The 182-page obstruction volume concludes by noting that Mueller couldn’t exonerate Trump: “[I]f 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.” After reading the report, which meticulously catalogs the president’s lies, there’s no need to equivocate: Trump acted corruptly in an unlawful effort to obstruct justice.
In looking through each potential criminal act, the special counsel analyzed the three elements of obstruction of justice: the evidence of the potentially obstructive act, whether it had a necessary nexus to a pending or ongoing official legal proceeding, and a corrupt intent, defined by Mueller—citing Justice Antonin Scalia—as “intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” The third of these questions is the trickiest, and it is here where Mueller’s description of Trump’s lies becomes relevant.
Given that the president refused to submit to an interview or to answer questions in writing on the topic of obstruction of justice, Trump’s many public—and sometimes private—lies played a key role in the special counsel’s analysis. What follows is a list of what Mueller identified as Trump’s key lies and how Mueller used them to prove corrupt intent.
1. The fallout from Michael Flynn’s discussions with Sergey Kislyak. This episode is in many ways at the root of the special counsel’s probe. After President Barack Obama issued sanctions against Russia for interfering in the 2016 election, incoming national security adviser Michael Flynn spoke with Russian Ambassador Sergey Kislyak and helped persuade the Russians not to retaliate. Later, Flynn lied to the FBI in saying that he had not discussed sanctions with Kislyak. In the midst of the episode, according to former FBI Director James Comey, Trump invited Comey to dinner and asked him for “loyalty.” Mueller points out that Trump appears to have lied about both the loyalty request, saying it did not happen, and who offered the invitation, telling a reporter “that he thought Comey had ‘asked for the dinner’ because ‘he wanted to stay on.’ ”
Trump also lied about the other famous meeting he had with Comey. Shortly after Flynn was forced to resign, Trump held a one-on-one Oval Office meeting with Comey and asked him to “let this [Flynn thing] go.” As Mueller reports, the president denied saying those words to Comey, but “substantial evidence corroborates Comey’s account.” And as I noted in 2017, Trump also lied about whether he cleared the room prior to the alleged instruction. “While the President has publicly denied those details, other Administration officials who were present have confirmed Comey’s account of how he ended up in a one-on-one meeting with the President,” the report says.
2. The firing of James Comey. As he acknowledged in a 2017 interview with NBC’s Lester Holt, Trump decided to fire Comey because of the FBI director’s handling of the Russia investigation. (“When I decided to just do it, I said to myself—I said, you know, this Russia thing with Trump and Russia is a made-up story,” Trump told Holt.) However, the president initially dictated a public statement that falsely claimed the firing was “based on the clear recommendations” of Rosenstein and then–Attorney General Jeff Sessions. As Mueller notes, the evidence supports the notion that Trump fired Comey because of his refusal to state publicly that the president was not under investigation, contrary to this effort. “The President’s other stated rationales for why he fired Comey are not similarly supported by the evidence,” Mueller says. In other words, they were lies. As the special counsel concludes, “The initial reliance on a pretextual justification could support an inference that the President had concerns about providing the real reason for the firing.”
3. Trump’s false characterization of the Trump Tower meeting. Trump dictated a misleading statement about the June 2016 meeting coordinated by Donald Trump Jr. at Trump Tower. That statement sought to hide the fact that the purpose of the meeting was to acquire dirt on Hillary Clinton. Trump then had his lawyer lie about that misleading statement to the public. As the special counsel notes, “the President’ s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr.’s statement” before later acknowledging to the special counsel that Trump had drafted it. Interestingly, while Mueller lays out how it’s clear that Trump intended to deceive the public with a cover story that the meeting was about Russian adoption, he then says, “the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining” the truth, which seems to preclude obstruction of justice in this instance.
4. Trump’s efforts to have Robert Mueller removed. Mueller painstakingly documents Trump’s efforts to instruct former White House counsel Donald McGahn to have the special counsel removed from office. In pointing to the criminal intent of this act, Mueller offers that Trump repeatedly lied to the press once the efforts to have Mueller fired were revealed, saying he never made such an instruction. “Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper,” Mueller writes.
5. Trump’s demand that Don McGahn lie about the president’s efforts to have Mueller removed. Here, Mueller cites a New York Times report that described the episode in which Trump pushed McGahn to have Mueller fired. “After the article was published, the President dismissed the story when asked about it by reporters, saying, ‘Fake news, folks. Fake news. A typical New York Times fake story,’ ” the special counsel notes. After this, Trump allegedly asked former White House staff secretary Rob Porter to get McGahn to lie for the purposes of making an official “record,” something that Mueller suggests may have been prompted by the president’s awareness that McGahn had already begun making his own record of the actual events: “The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel. […] [T]he President said he wanted McGahn to write a letter to the file ‘for our records’ and wanted something beyond a press statement to demonstrate that the reporting was inaccurate. The President referred to McGahn as a ‘lying bastard’ and said that he wanted a record from him.” Further, in an Oval Office meeting with chief of staff John Kelly, “McGahn recalled the President said, ‘I never said to fire Mueller. I never said “fire.” This story doesn’t look good. You need to correct this.’ ” As Mueller says, “The President’s assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed […] runs counter to the evidence.” Mueller also notes that this was an obvious effort to impeach McGahn’s testimony to the contrary.
In documenting all of these lies by the president of the United States, Mueller presents a strong case for obstruction of justice. Contrary to what Attorney General William Barr and Deputy Attorney General Rod Rosenstein have concluded, Mueller does not even close the door on criminal prosecution of Trump. In Footnote 1,091, the special counsel notes that while impeachment is one legitimate avenue for a president who’s committed criminal acts, a future prosecution is another:
A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).
Members of Congress and prosecutors should ignore Barr and Rosenstein and read the Mueller report in its entirety. Trump’s lies and corrupt intent are unambiguous. The only question that remains is what our government plans to do about them.
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