For the past four weeks, I have been writing about the Mueller report, which is officially titled the Report on the Investigation into Russian Interference in the 2016 Presidential Election. The introduction to this series is here, and Part I, Part II and Part III can be found by following the links.
If you have not yet read the full report, why not? A free copy can be downloaded as a pdf from the Department of Justice’s website. A variety of digital editions can be found at the major booksellers (I read the one issued by The Washington Post, available here). There is also an Audible edition if you prefer to listen to the report. But I finally turned to the great big green paperback edition that leaves lots of room for old-fashioned margin notes and highlighting passages.
This week, we are looking at the final section of the report’s Volume II, which covers the president’s efforts to obstruct justice by attempting to interfere in the disclosure of the emails about the notorious June 9, 2016 meeting in the Trump Tower; and his conduct regarding Don McGahn, Michael Flynn, Paul Manafort, Michael Cohen, and an individual or entity which shows up in my copy as HOM, which is the redaction shorthand for “Harm to Ongoing Matter.” This is followed by an engrossing section on the legal defenses to the obstruction statutes as they apply to the president of the United States, including a thorough examination of the statute itself and its history.
Section G of Part II of Volume II examines Trump’s attempt to prevent the disclosure of the emails to and from his son regarding the June 9, 2016 meeting between Donald Trump, Jr., Paul Manafort, Jared Kushner, and a Russian attorney. The meeting was arranged to provide “dirt” on Hillary Clinton in order to assist the Trump campaign.
Although Trump initially claimed the meeting was held to discuss the ban on the adoption of Russian orphans by Americans, it always struck me that one cannot discuss that ban without discussing its source. The ban came about as a Russian reaction and response to the sanctions imposed under the Magnitsky Act, which was passed and signed into law in December 2012. It is doubtful that any discussion of the adoptions could not include the need to repeal the Magnitsky Act, nor do I understand why negotiating with a foreign power would not, at the very least, be a violation of the Logan Act. But then, I am not a lawyer, nor was I working in the special counsel’s office, and perhaps this was outside the scope of the investigation.
The Mueller report focuses on Trump’s repeated attempts to suppress the publication of the emails in the media, finding that:
… the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel. The series of discussions in which the President sought to limit access to the emails and prevent their public release occurred in the context of developing a press strategy.
Section H covers the multiple attempts by Trump to have Attorney General Jeff Sessions reverse his stance of recusal. Trump wanted Sessions to protect him by ending the investigation into Russian interference and to open an investigation of Hillary Clinton (because clearly, we have not investigated her enough). Although the report does not outright accuse the president of obstruction, it does not exonerate him, as was done in the preceding section.
A reasonable inference from those statements and the President’s actions is that the President believed that an unrecused Attorney General would play a protective role and could shield the President from the ongoing Russia investigation.
Section I is all about how Trump tried to get White House counsel Don McGahn to lie for him. He repeatedly asked McGahn, directly and through others, to dispute press reports that the president had ordered McGahn to have the Department of Justice fire the special counsel. The special counsel writes about Trump’s intent:
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 further scrutiny of the President’s conduct towards the investigation.
McGahn threatened to quit before he would lie to the press or write a false “memo to file,” denying Trump’s attempt to have him fire Mueller.
Section J outlines Trump’s attempt to sway the testimony of Paul Manafort, Michael Flynn, and HOM.
In addition to the interactions with McGahn described above, the President has taken other actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn, Manafort, [+ + + + +] and as described in the next section, Cohen. When Flynn withdrew from a joint defense agreement with the President, the President’s personal counsel stated that Flynn’s actions would be viewed as reflecting “hostility” towards the President. During Manafort’s prosecution and while the jury was deliberating, the President repeatedly stated that Manafort was being treated unfairly and made it known that Manafort could receive a pardon. [+ + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + + +]
The final Section, K, discusses Trump’s attempt to influence the testimony of Michael Cohen:
After the FBI searched Cohen’s home and office in April 2018, the President publicly asserted that Cohen would not “flip” and privately passed messages of support to him. Cohen also discussed pardons with the President’s personal counsel and believed that if he stayed on message, he would get a pardon or the President would do “something else” to make the investigation end. But after Cohen began cooperating with the government in July 2018, the President publicly criticized him, called him a “rat,” and suggested his family members had committed crimes.
Bear in mind that this is the President of the United States, making the kind of gangland threats that more appropriately appear in a Mario Puzo novel. It is appalling and shocking and has somehow become normalized through its acceptance by our media and the public.
The final section, Part III, discusses the legal defenses to the obstruction of justice statutes presented by the president’s personal counsel. This is a long and fascinating discussion of whether or not an obstruction of justice charge under the obstruction of justice statute, 18 U.S.C. § 1512(c)(2), can apply to the president.
[...] counsel has made a categorical argument that “the President’s exercise of his constitutional authority here to terminate an FBI Director and to close investigations cannot constitutionally constitute obstruction of justice.”
The president’s personal counsel argued that any charge under the law would inhibit Trump’s ability to carry out his duties under Article II of the U.S. Constitution. The Special Counsel’s Office response:
In sum, contrary to the position taken by the President’s counsel, we concluded that, in light of the Supreme Court precedent governing separation-of-powers issues, we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement officers. And the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.
What is made clear in this section is the need for Congress to take action to rein in the obstructive activities of a sitting president, either through the enactment of law or other, constitutionally recognized means that could be followed by criminal proceedings.
1091A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. Art. § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).
Within the report, Mueller indicates that other agencies of the executive branch as well as state governments were investigating any possible hacking of voting machines that could be attributable to the Russian interference. So that was not included in the report.
A more significant omission, as explained by The Daily Beast’s Jed Shugerman, was any examination of the clear violation of campaign finance laws. Those regulations do not require an ”agreement--tacit or expressed,” as was claimed in the overview of the investigation into Russian interference in coordination with the Trump campaign. On the contrary:
However, Congress purposely sought to prevent such narrow interpretations: in 2002, it passed a statute directing that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination.” The Federal Election Commission established the regulations for the implementation of the statute: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement.
Outside spending for coordinated communications is an in-kind contribution, and foreign contributions are completely prohibited. And Congress made the criminal penalties unmistakably clear: “Any person who knowingly and willfully commits a violation of any provision of this Act” commits a crime. The Supreme Court upheld these limits in McConnell v. FEC with crucial observations about the functional role of suggestions, rather than agreements: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.” This timeline is full of suggestions far more explicit than winks and nods.
But putting aside Shugerman’s analysis, one cannot read the Mueller report without believing that our president is a crook. He acts like one, publicly and flagrantly. His behavior, and our silent acquiescence to it, is establishing a precedent for all future executive officers, whether we continue to call them president or begin referring to them as dictator-for-life.
Of what good is any law, if it is not to be enforced?
Madame Speaker, the ball is in your court. It is time to brush off your pocket edition of the U.S. Constitution and defend it—regardless of the political consequences.