The Mueller Report Is Clear: Donald Trump Repeatedly Tried to Obstruct Justice

Now we know why Attorney General William Barr went to such great lengths to spin the contents of the special counsel Robert Mueller’s report. Although Mueller’s team didn’t establish that Trump or anybody connected to his campaign engaged in a criminal conspiracy with Russian trolls and hackers, the investigation dug up voluminous evidence that the President repeatedly tried to hamper, and even close down, the Russia investigation. The only partial mystery that remains is why Mueller backed away from concluding whether Trump’s efforts at obstruction amounted to a crime.

The body of the report provides new details about some interventions that we already knew about, including Trump’s request to the F.B.I. director, James Comey, to lay off Michael Flynn, the national-security adviser; his subsequent firing of Comey; and his attempt, in June, 2017, to get rid of Attorney General Jeff Sessions, who, to Trump’s fury, had recused himself from the Russia investigation. We also learned that Trump called the White House counsel, Don McGahn, from Camp David to order him to have Mueller fired, and that McGahn then called Reince Priebus, Trump’s chief of staff, and told him the President had asked him “to do crazy shit.”

The report also reveals previously undisclosed instances of the President’s bullying tactics, such as when, shortly after McGahn refused to fire Sessions, Trump asked Corey Lewandowski, his former campaign manager, to tell the Attorney General to unrecuse himself and order Mueller to focus the Russia investigation on preventing future election interference. He also told Lewandowski to ask Sessions to issue a public statement saying that Trump hadn’t done anything wrong and there shouldn’t even be a special-counsel investigation. Lewandowski passed off some of these requests to Rick Dearborn, a senior White House official who had previously worked as Sessions’s chief of staff. According to the report, Dearborn “did not follow through.”

In assessing Trump’s behavior, the report uses some satisfyingly plain English, such as this paragraph on page 156 of the second volume, which relates to obstruction:

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. 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. Viewing the acts collectively can help to illuminate their significance. For example, the President’s direction to McGahn to have the Special Counsel removed was followed almost immediately by his direction to Lewandowski to tell the Attorney General to limit the scope of the Russia investigation to prospective election-interference only—a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.

Although the report doesn’t contain a formal prosecutorial judgment, it does dismiss some of the possible defenses for Trump’s efforts to influence the Russia investigation, such as the fact that some of them were carried out in public, often via his Twitter account. As the report notes, “many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. While it may be more difficult to establish that public-facing acts were motivated by a corrupt intent, the President’s power to influence actions, persons, and events is enhanced by his unique ability to attract attention through use of mass communications. And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened.”

The report also goes directly to the issue of Trump’s intent, and it dismisses the argument that he cannot be culpable for obstruction because the report didn’t find evidence of underlying collusion:

In this investigation, the evidence does not establish that the President was involved in an underlying crime relating to Russian campaign interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events—such as advanced notice of Wikileaks’ release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians—could be seen as criminal activity by the President, his campaign, or his family.

The report also acknowledges an evolution in Trump’s attitude toward the investigation. In the first stage, before firing Comey, he was furious that the F.B.I. director would not state publicly that Trump was not personally under investigation. But, after Mueller was appointed and Trump discovered that the special counsel was looking at the possibility of whether Trump had attempted to obstruct justice, the President’s attitude changed, and this led to “the start of a second phase of action”:

The President launched public attacks on the investigation and individuals involved in it who would could possess evidence adverse to the President, while in private the President engaged in a series of targeted efforts to control the investigation. For instance, the President attempted to remove the Attorney General; he sought to have Attorney General Sessions unrecuse himself and limit the investigation; he sought to prevent public disclosure of information about the June 9, 2016 meeting between Russians and campaign officials; and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government.

Finally, the report points out that, although Trump’s attempts to limit and shut down the investigation didn’t ultimately work, that was not because of a lack of effort or intent on his part. Instead, some of the people around him refused to do what he wanted them to do. The language of the report could hardly be more blunt:

The president’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons surrounding the President declined to carry out orders or accede to his requests. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President’s message to Sessions that he should confine the Russia investigation to future meddling only. And McGahn refused to recede from his recollections the events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so.

If you add all this together, it would be hard for any objective observer to reach a conclusion other than that Trump tried repeatedly to obstruct the inquiry. Which brings us back to the question of why Mueller didn’t say whether this amounted to obstruction of justice.

In lengthy legal arguments, Mueller did reject the argument put forward by Trump’s lawyers (and by Barr, in an infamous memo to Deputy Attorney General Rod Rosenstein, in June, 2018) that a President cannot obstruct justice. According to the report, “We were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise valid Article II powers.”

But Mueller and his colleagues did take seriously the Justice Department’s legal guidelines, which say that a sitting President cannot be indicted. “We recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” the report says. It goes on, “The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

Then comes another key sentence, which also refers to the Justice Department guidelines: “The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice.” Like a formal indictment, it could “imperil the President’s ability to govern.”

The bottom line is that Mueller, a stickler for process, declined to reach a prosecutorial judgment because he was keen to follow Justice Department guidelines, even though Barr and many former Justice Department officials have said that they were surprised at this decision. Lawyers and historians will be debating it for decades. I’ve said before that I consider it a cop-out.

In any case, Mueller did not fail to provide a great deal of evidence that Trump tried to obstruct justice, and he did not accede to the notion that nothing should be done about it. “The protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government,” the final section of the report states, citing the 1881 case of United States v. Lee: “No man in this country is so high that he is above the law.”

A previous version of this post misstated which official Trump instructed McGahn to fire.