don mcgahn, James Comey, Michael Flynn, Mueller report, Obstruction of Justice, Robert Bork, Robert Mueller, Russia investigation, Saturday Night Massacre, William Barr
By Frank Bowman
This is how it’s done. In the endless, degrading cacophony of the Trump era, in which the “tweet storm,” the “flame war,” the sneering insult, and the facile certainty of cable punditry have become the customary form of legal and political discourse, I had almost forgotten what the language of the law sounds like. But there it is in the 448 pages of the Mueller report
— logical, cautious, painstaking, measured, dry, yet inexorably compelling. One may quibble about details, but taken as a whole, Mueller’s product is an exemplar of the prosecutor’s craft and a powerful reminder of why a Justice Department imbued with norms of independence and professionalism is an essential counterweight to both presidential overreach and partisan hysteria.
The legal craftsmanship of the report is also an unanswerable refutation of the endlessly repeated canard that the Mueller investigation was a baseless partisan “witch hunt” by a hostile “deep state.”
In one sense, of course, the report is the work of the “deep state,” if by that foolish term one means the career professionals of American law and government. If some of those professionals are hostile to Trump and Trumpism, it is only because their lives are based on values — the dogged pursuit of truth, a commitment to fairness and due process, respect for the law, support of constitutional government — that Trump openly flouts.
Nonetheless, Trump should thank his lucky stars that Mueller’s team was composed of such old-fashioned folks. Had they indeed been the “thirteen angry Democrats” of Trump’s splenetic imagination, persons of the disposition and caliber of, say, Devin Nunes or Lindsey Graham, but of the opposite political valence, the resultant report would surely have been very different. As it is, the professional values and institutional norms by which good prosecutors live produced a report exonerating Trump of actual crime in relation to Russian election interference and withholding judgment on the legal question of obstruction.
Trump and his enablers are, of course, claiming vindication. But the caution and restraint of Mueller’s style cannot obscure the facts he meticulously reports. And those amount to a devastating portrait of a man by conduct, character, and temperament unfit for the office of president.
The section of the report on Russian election interference does clear Trump and his campaign of conspiring with the Russian government to interfere in the 2016 election. It nonetheless unequivocally affirms that the Russians did interfere. And it depicts Trump campaign operatives, including members of the Trump family, who were aware of the possibility that Russia was trying to intervene to help Trump by hacking and leaking material damaging Clinton, but saw no problem with such Russian meddling and would happily have conspired in it given the chance.
The reality of Russian intervention and the dangerous, if perhaps not quite provably illegal, proximity of Trump intimates to it frames the question of Trump’s obstruction quite differently than his defenders would like. Despite Trump’s endless denials, the Russians did meddle. As a matter of national security, that required investigation. Likewise, Trump associates and family did have troubling contacts with Russian emissaries. That, too, required investigation. Given the facts, both those long publicly known and others now laid out in Mueller’s report, investigation of neither point could, except in the mind of a willfully blind partisan, amount to a “witch hunt.”
Moreover, a truly independent inquiry into Russian electoral interference represented a political threat, or at least grave embarrassment, to Trump, because it raised the possibility that his victory was tainted by the assistance of a hostile foreign power. In addition, by no later than early 2017, Trump knew that his family and associates had, at the very least, come dangerously close to illegal entanglements with Russian representatives. Thus, Trump had powerful motives to quash the Russia investigation.
The crime of obstruction of justice depends on proof of two basic points — first, actions that obstruct or impede an investigation, and second, corrupt motive. Although a president may lawfully limit or even halt investigations for reasons genuinely related to the national interest, doing so to advance one’s partisan political prospects or to protect oneself or one’s family or friends from criminal exposure or personal embarrassment is to act corruptly.
The second volume of Mueller’s report lays out eleven different incidents or sequences of events that might amount to obstruction — from Trump’s efforts to convince FBI Director James Comey to lay off the investigation of Gen. Michael Flynn, to his repeated attempts to stop or limit the Mueller investigation, to his public and private efforts to induce witnesses Flynn, Manafort, and Cohen not to testify or to hew to Trump’s preferred view of reality.
Space precludes a blow-by-blow analysis of each of these categories, but Mueller’s conclusions — though guardedly, even opaquely, phrased — are evident and damning. He concludes that on multiple occasions Trump engaged in behavior that either did, or was intended to, obstruct or impede criminal investigations. As to some of the enumerated categories, Mueller concludes that, even if obstructive conduct occurred, there was insufficient evidence of “corrupt” motive. But as to at least five sequences of events, Mueller unmistakably believes that there is persuasive evidence of both obstructive conduct and corrupt motive. These included repeated efforts to remove special counsel Mueller; an attempt through Cory Lewandowski to induce Attorney General Sessions to limit the scope of the Mueller probe to future Russian interference in elections; a brazen attempt to convince White House Counsel Don McGahn to lie about the fact that Trump had ordered him to arrange the firing of Mueller; Trump’s efforts to influence the cooperation and testimony of Michael Flynn and Paul Manafort; and Trump’s efforts to induce Michael Cohen not to cooperate or to shade his testimony in Trump’s favor.
Mueller’s conclusions are unmistakable despite his careful refusal to go the last step and say plainly that Trump obstructed justice. If there were any doubt on the point, it is removed by the report’s inclusion of a devastatingly thorough legal rebuttal of Attorney General Barr’s apparent view that a President cannot commit obstruction by stopping or limiting a criminal investigation. The only reason to include such an argument is if Mueller concluded that, on the facts, the president violated the law. Otherwise, the legal question is moot and a legal craftsman like Mueller would never have included such surplusage.
In the end, of course, whether a president can or cannot technically commit the crime of obstruction is itself a moot point. As I have argued many times, Bob Mueller was never going to defy DOJ policy and seek indictment of a sitting president. As to the president, therefore, Mueller’s job from the beginning was to determine the facts and present them to Congress and the public in order that a political judgment about the president’s fitness for office could be made — whether through the impeachment process or at the polls.
The picture of the current president painstakingly etched in the Mueller report is of a man with three dominant characteristics.
First, his narcissism overwhelms all other considerations. Even a more balanced and self-aware person would have found the Russia inquiry politically and personally troublesome. But one cannot escape the feeling (to which Mueller obliquely alludes) that a primary factor in Trump’s desperate efforts to squash the investigation was the fragility of his ego — a manic determination that the epic achievement of his election not be tarnished by even a hint that forces other than Trump played a role.
Second, Trump believes that, having been elected, the powers of government are to be wielded for his personal and political benefit and the law exists only as a tool to serve his ends. No institution, no law, no set of traditional norms, no professional standard, certainly no moral consideration deserves any deference if it stands in the way of his immediate wishes.
Third, the thread running through the entire report is Trump’s essential falsity. Mueller confirms that Trump not only lies constantly as part of his public act, but does so privately among his advisers and intimates and he expects others to lie for him on command. Among the most revealing vignettes is Trump’s effort to convince Don McGahn to lie about the fact that Trump ordered him to secure Mueller’s firing. McGahn, to his credit refused and showed Trump his notes documenting the order. Trump exploded in astonishment that, “Lawyers don’t take notes…. I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.” That a subordinate might have personal integrity and be unprepared to sacrifice it on Trump’s command had seemingly never occurred to him.
One other curious theme recurs throughout the report as a kind of counterpoint to Trump’s lawlessness. Even though Trump repeatedly ordered people to crush or divert or hobble the Russia investigation, over and over they refused to comply, either to his face or simply by failing to carry out his directives. Revealingly, those who resisted told Mueller that they did so because they didn’t want to be responsible for another “Saturday Night Massacre,” or they didn’t want to be another Robert Bork.
This is heartening in a sense. The example of Watergate seems to have restrained at least some Trump subordinates and helped buttress, at least for awhile, the tottering citadel of the rule of law. But the Mueller report is about yesterday’s White House. Those with historical memory, and perhaps more imbued with personal integrity and professional values, are largely gone. Quit in disillusionment. Or purged because they refused to bend to Trump’s lawless whims. In considering what to do about Donald Trump, Congress should ponder that they now confront a Trump unchanged in his essence but increasingly surrounded by aides who may prove unwilling to provide even the modest restraint on his worst impulses documented in Mueller’s report.
Whether Donald Trump violated a particular federal obstruction statute is in the end a peripheral matter. The fundamental lesson of the Mueller report is simply that he is fundamentally unfit for office and presents a persistent danger to the integrity of the American constitutional order. That is the question that Congress and the country must now address.