Lawfare’s Benjamin Wittes – a man not given to hyperbole – has finished reading the Mueller Report and created a nice crib sheet of his conclusions:
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 restrict 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 recused himself 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. Trump wanted Sessions 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 Russia’s 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.
Another example: Mueller reports that after the news broke that Trump had sought to get then–White House Counsel Don McGahn to fire the special counsel, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.
The attempt to get McGahn to write an internal memo disputing the story is the crucial fact here. The president’s conduct might otherwise be defended as a mere effort to lie to the press, but one doesn’t order the creation of false internal documents for purposes of denying a published story. So the question is, first, whether what Mueller described as Trump’s “repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel” would have “the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility” if he told the truth. The second question is whether such a corrupt outcome was specifically intended by the president.
Mueller acknowledges that there is “some evidence” that the president simply thought the story was wrong and was proceeding on his memory. But Mueller is pretty clear that the weight of evidence “cuts against that understanding,” though—as always—he stops short of making that judgment explicit. Mueller previously concluded that McGahn’s underlying story was amply supported by the evidence, while it’s hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president’s intent, Mueller is pretty unabashed: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”
Assuming that one believes this could be proved beyond a reasonable doubt, imagining this fact pattern as a count in an indictment is not difficult. It is hard to imagine a plausible defense based on the idea that pressuring an employee to create false government records by way of influencing his ability to tell the truth is within the president’s constitutional authority.
If one accepts, as I do, Mueller’s general reading of the obstruction statutes as applied to official presidential action, there are many more examples. When Trump leaves office, assuming statutes of limitations have not yet run out, someone will have to make the binary assessment, which Mueller did not make, of whether they amount to prosecutable cases. As a historical matter, the report leaves me with little doubt that the president engaged in criminal obstruction of justice on a number of occasions.
The president also committed impeachable offenses.
Crimes and impeachable offenses are not the same thing, though they are overlapping categories. Some of the most obviously impeachable offenses described in the Mueller report are likely criminal as well. Some may not be. If I were a member of Congress, I would be thinking about which portions of the report describe, in my opinion, the most unacceptable abuses of power. A few stand out to me.
The first is the circumstances of, and run-up to, the firing of former FBI Director James Comey. While this fact pattern is complicated for criminal purposes, as a matter of impeachment, it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order to ask that he drop a sensitive FBI investigation in which Trump had a personal interest. The president then leaned on Comey to make public statements about his own status in the investigation. And when he couldn’t get Comey to do so, he recruited the deputy attorney general to create a pretext for Comey’s removal.
While there may be viable technical defenses against a criminal charge here, there simply is no plausible way to understand this fact pattern as a good-faith exercise of presidential power. It describes a frank abuse of power: a sustained demand for a wholly self-interested investigative outcome; a willingness to disrupt a crucial institution to get that outcome, to retaliate against an official who would not deliver it, and to set the entire apparatus of the White House to lying about the reason for the action; and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.
Ditto the effort to get Sessions to investigate Hillary Clinton. Mueller does not disentangle this effort from the attempt to get Sessions to reassert control of the Russia investigation. Let’s do so here: Even as he was trying to get Sessions to protect him from the FBI, Trump was also trying to induce Sessions to investigate his political opponents.
This is not obstruction of justice in any criminal sense. It’s rather the opposite of obstruction of justice; it’s the initiation of injustice. So I don’t think it’s plausibly sound in terms of criminal law. But it is molten-core impeachment territory. Consider: The president of the United States was trying to induce the attorney general of the United States to initiate a criminal investigation based on no known criminal predicate against a private citizen whom he happened to dislike. This was not rhetorical. It was not a joke. And if it is not unacceptable to Congress, then no member of Congress can say he or she was not warned when some future attorney general complies with a presidential request to launch an investigation against such a member of Congress.
A third example is the president’s public dance with Paul Manafort, in which he dangled the possibility of a pardon and praised Manafort’s bravery for not “flipping,” and in which his private counsel allegedly suggested that Manafort would be taken care of. Notably, Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction. Indeed, Mueller concluded that Manafort had breached his plea deal by failing to cooperate and by lying to investigators. So the reality here may well be that the president’s obstructive conduct did, in fact, obstruct the investigation. The president hinted that Manafort should not “flip” and that he would take care of him—and Manafort acted in a fashion consistent with his relying on those assurances. I think this activity, assuming it can be proved, is criminal.
It is also a grotesque abuse of power for impeachment purposes. The spectacle of the president of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they do not cooperate is one of the most singular abuses of the entire Trump presidency. Again, one has to ask of Congress what is unacceptable in a president’s interaction with an investigation if this conduct is tolerable?
In short, the question of the prudential wisdom of impeachment politically may be a hard one for members of Congress, but the impeachability of the conduct described by Mueller is not a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address.
Wittes’ other conclusions? That Trump was not complicit in the Russian social-media conspiracy; that Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture (the “Trump Tower Meeting” among other things suggest a willingness, albeit a failure, to actually conspire with the Russians); and that there is little to be weened from the report on counterintelligence matters, but it is concerning that we may not know enough about what the Russians actually did.