I spent the week after the release of Special Counsel Robert Mueller’s report going through it section by section and writing a kind of diary of the endeavor. My goal was less to summarize the report than to force myself to think about each factual, legal, and analytical portion of Mueller’s discussion, which covers a huge amount of ground.
Here are five conclusions I drew from the exercise:
The president committed crimes.
There is no way around it. Attorney General William Barr’s efforts to clear President Donald Trump, both in his original letter and in his press conference the morning of the report’s release, are wholly unconvincing when you actually spend time with the document itself.
Mueller does not accuse the president of crimes. He doesn’t have to. But the facts he recounts describe criminal behavior. They describe criminal behavior even if we allow the president’s—and the attorney general’s—argument that facially valid exercises of presidential authority cannot be obstructions of justice. They do this because they describe obstructive activity that does not involve facially valid exercises of presidential power at all.
Consider only two examples. The first is the particularly ugly section concerning Trump’s efforts to get then–Attorney General Jeff Sessions to “unrecuse.”
The alleged facts are simple enough. According to Mueller, the president asked Corey Lewandowski to convey a message to Sessions. It was a request that Sessions reassert control over the special counsel’s investigation, make a speech in which he would declare that the president didn’t do anything wrong and that the special counsel’s investigation of him was “very unfair,” and limit the special counsel’s investigation to interference in future elections. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question never did so.
A few factors are important to highlight here, all of them aggravating. Lewandowski was not a government employee, so this was not an example of the president exercising his powers to manage the executive branch. Indeed, Trump very specifically did not go through the hierarchy of the executive branch. He tried to get a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests. What’s more, the step he asked Lewandowski to press Sessions to take was frankly unethical. Sessions was recused from the Russia probe because he had an actual conflict of interest in the matter. In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.
But it gets worse, because Trump did not merely seek to get Sessions to involve himself in a matter from which he was recused. He wanted him both to limit the scope of the investigation and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice. Limiting the jurisdiction of the special counsel to future elections would have, after all, precluded the indictments Mueller later issued for the Russian hacking and social-media operations. It would have precluded the prosecutions of Paul Manafort, Michael Cohen, Mike Flynn, George Papadopoulos, and Rick Gates, as well. Nor is there any real complexity here with respect to Trump’s intent. As Mueller reports, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”
As a criminal matter, this fact pattern seems to me uncomplicated: If true and provable beyond a reasonable doubt, it is unlawful obstruction of justice. Full stop. [Continue reading…]