None of What Mueller Calls Potential Obstruction is Actually Obstruction

In his report, Special Prosecutor Robert Mueller outlined ten broad instances in which President Trump may have obstructed justice but reiterated in his press conference that Justice Department guidelines, "a president cannot be charged with a federal crime while he is in office."

The clear implication is that but for those guidelines, Trump would have been indicted on obstruction of justice charges. As Mueller put it, "if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime."

Any objective reading of the facts of the case and governing law, however, would reach the inevitable conclusion that the president did not, in fact, commit a crime. Justice Department guidelines notwithstanding, charges against Trump simply couldn't be supported by the evidence presented in Mueller's report.

Obstruction of justice is defined in 18 U.S.C. § 1503 as any act that "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice." To be convicted of obstruction, therefore, one must (1) act with specific intent to obstruct and (2) know that this act will in fact obstruct the investigation or proceeding against him.

It should be noted here that "attempted obstruction of justice" or "talking about possibly obstructing justice" are not crimes. To support a charge of obstruction, a prosecutor must demonstrate that the suspect affirmatively acted to obstruct the investigation with the knowledge that the action would in fact obstruct the investigation.

None of the ten instances of potential obstruction Mueller's report cites comes close to this threshold.

The first, conduct related to President Trump's dealings with former FBI Director James Comey in February of 2017 illustrates this clearly.

When President Trump invited Comey to dinner and "told [him] that he needed loyalty," Comey interpreted this to mean that when Trump later told him that he hoped he can "see [his] way to letting this go, to letting Flynn go," he was demanding that Comey drop the Flynn investigation or else. Comey later testified that he believed that he would be fired if he was not sufficiently loyal to Trump and refused to do his bidding.

Trump, apparently believing that firing Flynn would mean that "the Russia thing was over," also seemingly thought that ending the FBI's investigation into Flynn would end the probe that was hampering the early days of his administration.

Here's the thing, though: President Trump could have simply ordered an end to the investigation any time he wanted. He didn't need to ask for Comey's permission.

Under Article II of the Constitution, "[t]he executive Power shall be vested in a President of the United States of America." The entirety of the Executive Branch of the federal government, therefore, is under the total control of the President. The FBI, as an agency of the Justice Department, reports to the President and thus any FBI investigation is inherently subject to presidential approval.

The Supreme Court affirmed that the president has the unilateral power to remove officers he appoints in Myers v. United States in 1926, reasoning that the "principle is that those in charge of and responsible for administering functions of government, who select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they appoint."

While the FBI (and the Justice Department more generally) has been traditionally viewed as somewhat independent from the White House, it is still an arm of the Executive Branch. Mueller's report concludes that Trump may have obstructed justice by asking the FBI's director to end an investigation, but this would be a legal impossibility since ending FBI investigations is entirely within the president's Article II powers.

Similarly, President Trump's subsequent firing of Comey was well within his constitutionally delegated authority and could not possibly be an illegal act. Under Article II, the only limit on the president's authority to hire and fire any Executive Branch employee he wishes is the "Advice and Consent" clause, which applies only to the nominations of ambassadors, federal judges, and "Officers of the United States." While the Senate had to confirm Comey as FBI director, it had no say in his termination. He served at the whim of the president.

Mueller, however, seems to disagree.

Remember, in order to obstruct justice, Trump needed to act with specific intent to hamper an investigation and know that his act would in fact do what he intended. Trump musing that "firing Comey 'might even lengthen out the investigation'" indicates that he did not know that firing Comey would necessarily end the Russia probe; to the contrary, he thought (correctly) that it would do the exact opposite!

And Comey's firing did absolutely nothing to hinder the ongoing investigation in any way. As then-Acting FBI Director Andrew McCabe testified to the Senate Judiciary Committee days after Comey was let go, "you cannot stop the men and women of the FBI from doing the right thing, protecting the American people and upholding the Constitution."

In other words, the employment status of James Comey had no bearing on the investigative work that his agents were doing.

Senator Marco Rubio asked flat out: "Has the dismissal of Mr. Comey in any way impeded, interrupted, stopped, or negatively impacted any of the work, any investigation or any ongoing projects at the Federal Bureau of Investigation?"

"As you know Senator," McCabe answered, "the work of the men and women of the FBI continues despite any changes in circumstance, any decisions, so there has been no effort to impede our investigation to date."

Since firing Comey did not impede the investigation (and did, as Trump predicted, "lengthen" it), it could not possibly serve as evidence of obstruction.

And neither could Trump's interactions with his intelligence agencies and his former attorney general, Jeff Sessions, though Mueller insists that they could.

Sessions clearly felt as though he needed to recuse himself from an investigation into a presidential campaign for which he served as a surrogate, but President Trump didn't want him to, even going so far as to urge him to "unrecuse" so that he would have "an Attorney General who would protect him." What Trump felt as though he needed protection from is left up to the imagination. While Mueller clearly infers that Trump wanted Sessions to protect him from the investigation itself, this would require mind-reading. At the time, leaks from the ongoing FBI investigation were coming out almost daily--each one prompting wilder speculation in the media that President Trump had somehow committed treason or was a Russian agent. Was it not entirely reasonable to also presume that Trump might have wanted Sessions to unrecuse so that he could better control the flow of damaging information coming out of the investigation?

This possibility is bolstered by what Mueller next presents as evidence of Trump attempting to interfere in the investigation; reaching out to the "Director of National Intelligence and the leaders of the Central Intelligence Agency (CIA) and the National Security Agency (NSA) to ask them what they could do to publicly dispel the suggestion that the President had any connection to the Russian election-interference effort." After all, "Comey had previously assured the President that the FBI was not investigating him personally." Since the President was not under investigation, then why couldn't Comey or anyone else in the intelligence community (who, remember, report to the president and serve at the his pleasure) dispel the rampant--and damaging--speculation that Trump was something of a Manchurian candidate.

What Mueller incorrectly interprets as Trump's request that "Comey 'lift the cloud' of the Russia investigation" was actually Trump's rather reasonable attempt to end the remarkably defamatory media reporting through a simple (and accurate) public statement that Trump himself was not suspected of colluding with the Russians. Such a statement would have neither ended the investigation nor interfered with it, but it would have given the public a more accurate idea of what the FBI was actually investigating. Comey, naturally, refused.

After Comey was fired, he continued his FBI's pattern of weaponized leaking by getting his private notes to The New York Times with the aim of forcing the Justice Department to name a special counsel to investigate the Russia scandal. Mueller's report lists the appointment itself as a possible example of Trump's obstruction.

President Trump bemoaning the appointment as "the end of his presidency" is nothing more than grousing, while his demand for Sessions' resignation was perfectly legal since Sessions served at Trump's pleasure and could be removed for any reason or no reason at all if Trump so desired.

Trump, incidentally, was correct about Mueller's conflicts of interest. His close relationship with Comey clearly colored his ability to impartially investigate the man who had fired him. Much of Mueller's evidence of obstruction is based on Comey's interpretation of what Trump was saying to him, and Mueller, as a friend of Comey's, would naturally tend to agree with his interpretation.

Trump's tweets complaining about the investigation, then, were not without merit. They also had absolutely no bearing on the status of the new special counsel investigation.

Moreover, since the special counsel's office was an arm of the Justice Department, Trump could have ended it any time he wished. As Mueller notes, he did try, directing White House counsel Don McGahn to "call the Acting Attorney General and say that the Special Counsel had conflicts of interest and must be removed."

Here's the thing, though: McGahn never did. He recognized that it would be a political disaster akin to President Nixon's "Saturday Night Massacre" and refused to carry out this directive. Not only would it have been perfectly legal for Trump to end the special counsel's investigation, he never actually ended the special counsel's investigation. Attempted obstruction is not obstruction, especially when the underlying attempt could not legally constitute obstruction at all.

The same pattern emerges in Mueller's handling of allegations that Trump tried to get Corey Lewandowski to pressure Sessions into speaking out about the investigation.

In what way exactly is this an attempt to hamper the investigation? Did Trump instruct Lewandowski to tell Sessions to stop complying with subpoenas from the Special Counsel's office? Did he instruct Sessions to impede Mueller's work at all? No, he merely demanded that Sessions speak for the President in reiterating Trump's belief that the investigation was very unfair to him.

Nonetheless, the demand was never acted upon and Trump instead turned his ire on Sessions in a series of tweets. If venting about an investigation or asking subordinates to vent about said investigation on one's behalf amounts to obstruction, then no defendant would ever be free to speak out about what he or she perceives to be unfair treatment by prosecutors. Minus a gag order by a judge, speaking out about ongoing legal proceedings is a fundamental freedom. Criminalizing it therefore raises potential First Amendment concerns.

Trump, however, didn't just demand that Sessions criticize the investigation; he asked him to retake control of it.

Mueller presents the revelation that Trump requested that Sessions investigate Hillary Clinton, his 2016 opponent, as evidence that Trump was trying to take the heat off of the investigation into him. Long before the Russia investigation ever started, however, Trump frequently called for investigations into Clinton's mishandling of classified information. On the campaign trail, his crowds routinely chanted "Lock her up!" Whether Trump was serious about opening a new investigation into Clinton's alleged wrongdoing was an open question in the days and weeks after his election.

Why? Because, as head of the Justice Department, Trump could order investigations into whomever or whatever he pleased (subject, of course, to the normal standard of reasonable suspicion that crimes had actually taken place). Again, this is well within the president's Article II authority, but Mueller seems to willfully ignore this.

Two months later, Trump again asked Sessions to reconsider his decision to give up control of the Mueller probe, telling him that if he did so, "he would be a 'hero.'" The very next sentence tends to disprove the notion that Trump was trying to illegally obstruct the investigation: "The President told Sessions, 'I'm not going to do anything or direct you to do anything.'" Even though Trump legally could have ordered Sessions to retake control of the investigation or shut it down himself, Trump never actually ordered Sessions to shut the investigation down!

By the summer of 2017, Trump was acutely aware of how the Russia investigation was being used to smear him in the media, and he was hyper-concerned with controlling the flow of information about it. When news outlets began focusing intensely on Donald Trump, Jr.'s infamous meeting at Trump Tower with a pair of Russians, the President closed ranks. Mueller presents this as evidence of obstruction, of course, but it is in reality nothing of the sort.

If wanting to keep emails from the media (not the investigators, who had access to them) is obstruction of justice, then does every criminal defendant have a duty to make public every relevant communication about his pending case? Of course not, but Mueller including this as evidence of obstruction would tend to suggest that he believes this to be the case. "Obstruction of the media" is not obstruction of justice. Nor is removing a line in a press release. It is controlling what information is released to the press. Was it a lie by omission? Yes. Was it a lie to investigators that would rise to the level of obstruction? No, and neither is an attorney lie to the press about whether or not Trump had a hand in changing the press release.

Lying to the press, while obviously dishonest, has been a hallmark of the presidency since the dawn of both the presidency and the press. News reporters may wishfully think it should be illegal to lie to them, but all understand that gleaning the truth from statements from public figures is the very nature of their job.

Press reports similarly figured heavily into Mueller's eighth piece of evidence of impeachment: Efforts to remove him as special counsel.

Again, Trump asks a subordinate to lie to the press--this time about demanding that Mueller be fired. Does it reveal that Trump isn't always the most honest person in the world? Yes. Did it impede the investigation in any way? No. Mueller's work continued unabated and, yet again, it is worth a reminder that Trump could have fired Mueller and ended the investigation any time he wished. He didn't need McGahn to do it. He could have called a Rose Garden press conference and fired Mueller live on television. Heck, he could have called him into the boardroom from The Celebrity Apprentice and uttered his famous catchphrase with Dennis Rodman and Omarosa looking on and it would have been perfectly legal.

The special counsel reported to the Justice Department, which reports to the president. The president therefore has the absolutely Article II authority to end any investigation he pleases. A legal, constitutional act cannot be made illegal because an investigator says it is.

Likewise, Trump's attempts to contact Michael Flynn after Flynn began cooperating with the investigation do not rise to the level of criminal conduct.

This communication with Flynn is presented as a form of witness tampering, but it does not meet the statutory burden under 18 U.S. Code § 1512. To be convicted under the statute, the prosecution must prove that a defendant "knowingly use[d] intimidation, threaten[ed], or corruptly persuade[ed] another person, or attempt[ed] to do so...with intent to...influence, delay, or prevent the testimony of any person in an official proceeding."

After he was rebuffed in his request for a "heads up" about possible "information that implicates the President," Trump's attorney merely "said he would make sure that the President knew that Flynn's actions reflected a 'hostility' towards the President." Was this an outright threat? No. Could it have been perceived to be a veiled threat? Perhaps, but it could have also been one lawyer getting angry with another that his client had decided to cooperate with the investigation. Absent any evidence that Trump was actually planning to retaliate against Flynn (or at least to make Flynn think that he was), the "hostility" statement is flimsy at best--especially considering that Trump continued to speak publicly about what how unfairly the FBI and Mueller's team had treated Flynn. This doesn't seem to suggest that the president was in any way hostile toward Flynn and in fact still held him in high regard.

Trump also spoke publicly about Manafort "when the jury in his criminal trial was deliberating." That this is presented as evidence of obstruction is downright stunning. The First Amendment absolutely allows the president (or any other American citizen not bound by a gag order) to speak out about any ongoing criminal proceeding. Attempting to criminalize praise of Manafort is an attempt to criminalize protected speech. Would Mueller also believe that an interview with Manafort's wife or a friend on a cable news show while the jury was deliberating rose to the level of jury tampering?

Granted, the president's pardon power makes his statements about Manafort different since he actually does have the potential to impact Manafort's future, but said pardon authority is also well within the president's constitutional authority, and answering a question about it when asked is not evidence of obstruction; it's protected speech.

Trump's similar behavior towards his former attorney, Michael Cohen, comprises Mueller's tenth and final piece of evidence of obstruction.

Interestingly, Mueller's office in January issued a statement dispelling a Buzzfeed News report claiming that Trump had suborned perjury by instructing Cohen to lie about the Trump Tower Moscow project, saying "BuzzFeed's description of specific statements to the Special Counsel's Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen's Congressional testimony are not accurate."

Mueller's report, however, suggests that Trump (through an attorney) suborned perjury by telling Cohen to "stay on message" about the Trump Tower Moscow project. This is perhaps Mueller's strongest case for obstruction, but it rests on an incredibly shaky premise: That Michael Cohen, a convicted liar, is telling the truth. Could Cohen have invented the "party line" in order to give the special counsel's office what he surely knew they were after--information suggesting the president committed a crime? Mueller's report indicates that the only evidence of this supposed "party line" conversation is the testimony from a witness who the report had just revealed in the exact same sentence had "provided false testimony to Congress" about the very same project about which he was now telling the God's honest truth.

If this is Mueller's strongest case for obstruction, however, the case for obstruction is exceptionally weak. Mueller's insistence that legal, constitutional actions by a sitting president amount to illegal activity is a rather dishonest obfuscation of constitutional law, and his insistence that protected speech rises can be evidence of criminality should be a tad chilling to anyone who believes in the First Amendment.

A closer reading of his report thus reveals his press conference insistence that he didn't pursue charges against Trump because of Justice Department guidelines to be little more than excuse-making. The reality is that after nearly two full years' worth of investigating, Mueller's team simply couldn't find prosecutable evidence of obstruction.

Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media often overlooks. Read more

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