Here is, as Bill Barr might call it, “the bottom line”: The Mueller Report describes, in excruciating detail and with relatively few redactions, a candidate and a campaign aware of the existence of a plot by a hostile foreign government to criminally interfere in the U.S. election for the purpose of supporting that candidate’s side. It describes a candidate and a campaign who welcomed the efforts and delighted in the assistance. It describes a candidate and a campaign who brazenly and serially lied to the American people about the existence of the foreign conspiracy and their contacts with it. And yet, it does not find evidence to support a charge of criminal conspiracy, which requires not just a shared purpose but a meeting of the minds.
Here is the other bottom line: The Mueller Report describes a president who, on numerous occasions, engaged in conduct calculated to hinder a federal investigation. It finds ample evidence that at least a portion of that conduct met all of the statutory elements of criminal obstruction of justice. In some of the instances in which all of the statutory elements of obstruction are met, the report finds no persuasive constitutional or factual defenses. And yet, it declines to render a judgment on whether the president has committed a crime.
Now, the House must decide what to do with these facts. If it wants to actually confront the substance of the report, it will introduce a resolution to begin an impeachment inquiry. [Continue reading…]
Since Thursday’s release of the Mueller report, commentators in print and on cable news have suggested that but for these resisters, Trump would have committed the felony of obstruction. This is the wrong conclusion to draw from the report.
The confusion may stem from the following statement on Page 158 of Volume II. Here, Mueller wrote: “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.” This disobedient group included high-level officials—FBI Director James Comey and White House counsel Don McGahn—as well as seeming longtime loyalists Corey Lewandowski and Rick Dearborn. In each case Mueller cited, the president ordered these surrogates—either directly or via another surrogate—to take some extraordinary action to obstruct the Russia probe, and in each case he was rebuffed.
This paragraph, though, has given rise to the belief that when someone’s “efforts to influence” a proceeding fail, there are no grounds for obstruction. Not so. The federal statute and case law make this clear. An attempt to obstruct that fails is still a crime. [Continue reading…]