The Case for Obstruction in the Mueller Report May Not Be as Strong as the MSM Thinks It Is
As Democrats and the mainstream media pored over the redacted Mueller report released on Thursday, numerous media outlets zeroed in on the possibility that Trump committed obstruction of justice. Media outlets published lists of the "10 incidents" of possible obstruction Attorney General Bill Barr referenced from the Mueller report.
The New York Times, Business Insider, New York Magazine, The Guardian, The Hill, and more published lists of the incidents. CNN commentator Keith Boykin said, "it's pretty clear to me that Donald Trump obstructed justice or, at least, repeatedly tried to obstruct justice."
Mediaite senior columnist John Ziegler said that one of the "initial takeaways" from the report is simply that "Trump obstructed justice."
Contrary to the liberal narrative, the Mueller report does not conclude that Trump obstructed justice. Rather, Special Counsel Robert Mueller concluded that he could not definitively state whether or not Trump had committed obstruction, partially because he lacked the authority. He did say he could not exonerate Trump, but he did not decide the president is guilty, either.
The Mueller report's second volume lists 11 incidents, ten of which may involve an "obstructive act." Many of these claims have significant problems.
Former prosecutor Andrew McCarthy noted that an obstruction of justice conviction requires evidence of corrupt intent proven beyond a reasonable doubt. Yet Trump's frustration over the Russia investigation didn't focus on a fear of guilt — a typical obstruction motive — but rather a fear that the investigation was undermining his ability to govern the country.
Media outlets have seized on president's infamous statement, "Oh my God. This is terrible. This is the end of my Presidency. I'm f***ed." But the president wasn't confessing guilt. Rather, he was annoyed because "everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won't be able to do anything. This is the worst thing that ever happened to me."
In fact, McCarthy noted that "there is evidence that cuts sharply against obstruction. The president could have shut down the investigation at any time, but he didn’t. He could have asserted executive privilege to deny the special counsel access to key White House witnesses, such as [White House counsel Don] McGahn. To the contrary, numerous witnesses were made available voluntarily (there was no need to try to subpoena them to the grand jury), and well over a million documents were disclosed, including voluminous notes of meetings between the president and his White House counsel."
McCarthy argued that Mueller should have either charged Trump with obstruction or refused to lay out the reasons for potential obstruction charges. Yet Mueller did give them, and many of them have serious problems.
1. Response to claims Russia supported Trump
While AG Barr only mentioned 10 incidents that Mueller used to make obstruction claims, the report lists eleven incidents. The first, the Trump campaign's response to claims that Russia supported Trump, did not involve a potential act of obstruction.
Instead, this count involved Trump's denial of business in Russia — despite the fact he did have business interests there — and Trump's expressed doubts that Russia was behind the Hillary Clinton documents released by WikiLeaks.
2. Response to the investigation into Michael Flynn
Early in Trump's presidency, he fought back against the investigation of Michael Flynn. Mueller wrote that his statement to then-FBI Director James Comey — "I hope you can see your way clear to letting this go, to letting Flynn go... I hope you can let this go" — may constitute obstruction had the president's statement shut down an inquiry that could have resulted in a criminal charge.
In the section on the Flynn investigation, Mueller suggested that when Trump ordered Comey to investigate the claims of the tenuous Steele dossier — which was paid for by the Democrats and the Clinton campaign — that act could constitute obstruction of justice. The Federalist's Sean Davis noted how absurd that is.
3. Trump's reaction to the confirmation of the Russia investigation
In March 2017, Trump learned that Attorney General Jeff Sessions would recuse himself from the Russia investigation and confirmed that the FBI was carrying out such an investigation. Trump asked Sessions to unrecuse himself and he asked Comey to clarify that Trump was not involved in the Russia investigation in order to "lift the cloud" from his presidency.
Even in noting these requests, Mueller admitted that "they were not interpreted by the officials who received them as directives to improperly interfere in the investigation."
4. Events leading to the Comey firing
Mueller suggested that when Trump finally terminated James Comey, that act "removed the individual overseeing the FBI's Russia investigation," and therefore could involve obstruction. Yet criticism of Comey had been bipartisan, and many Democrats blamed him for Hillary Clinton's 2016 loss.
5. Efforts to remove the special counsel
The Mueller report admitted that Trump claims he never tried to get Robert Mueller fired. As Andrew McCarthy noted, the president never did terminate the special counsel, and his administration cooperated with the investigation.
"The President had discussed 'knocking out Mueller' and raised conflicts of interest in a May 23, 2017 call with [White House Counsel Don] McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel," Mueller wrote. Yet Trump ultimately did not remove Mueller.
6. Efforts to curtail the special counsel investigation
According to Mueller, Trump "sought to have Sessions announce that the President 'shouldn't have a Special Prosecutor/Counsel' and that Sessions was going to 'meet with the Special Prosecutor to move forward with investigating election meddling for future elections so that nothing can happen in future elections.'"
7. Prevented disclosure of emails about the Trump Tower meeting
In June and July 2017, Trump told staff not to publicly disclose emails involved in the Trump Tower meeting between Donald Trump Jr. and the Russian lawyer Natalia Veselnitskaya. Yet these efforts to keep Trump Tower emails secret only involved the press. Mueller admitted that "they would amount to obstructive acts only if the President ... sought to withhold information from or mislead congressional investigators or the Special Counsel."
In fact, "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." So why include this as an example of obstruction?
8. Efforts to have Sessions take over the special counsel investigation
Between the summer of 2017 and the summer of 2018, Trump tried to convince Sessions to reverse his refusal. This alleged potential attempt at obstruction (that's how tenuous this is) seems extremely similar to count 6.
Indeed, Mueller wrote, "To determine if the President's efforts to have the Attorney General unrecuse could qualify as an obstructive act, it would be necessary to assess evidence on whether those actions would naturally impede the Russia investigation. That inquiry would take into account the supervisory role that the Attorney General, if unrecused, would play in the Russia investigation."
9. Trump orders McGahn to deny that he tried to fire the special counsel
So, if Trump did not try to fire Mueller, as the president has insisted, then this count vanishes just as surely as count 5 does.
When media reports in January 2018 suggested that Trump had ordered McGahn to fire Mueller, Trump "sought to have McGahn deny that he had been directed to remove the Special Counsel."
However, "there is some evidence that at the time the New York Times and the Washington Post stories were published in late January 2018, the President believed the stories were wrong and that he had never told McGahn to have Rosenstein remove the Special Counsel," Muller admitted. Trump later said, "I never said to fire Mueller. I never said, 'fire.'"
So, if Trump did not think he tried to get Mueller fired, how could he have obstructed justice by telling McGahn to refute articles he himself thought were incorrect?
10. Trump's conduct toward Flynn, Manafort, and [REDACTED]
Trump encouraged his staff not to turn on him in the Russia investigation. He sent "private and public messages" to former National Security Advisor Michael Flynn, "encouraging him to stay strong and conveying that the President still cared about him before he began to cooperate with the government."
Trump had his personal lawyer reach out to former campaign chairman Paul Manafort, suggesting that a pardon was a possibility for him.
Mueller argued that Trump's overtures to Flynn, Manafort, and a third person might have prevented them from testifying truthfully.
11. Michael Cohen
According to Mueller, Trump's former lawyer Michael Cohen lied to Congress about the president's business interests in Russia. The report suggests Trump could have obstructed justice by participating in Cohen's false statements or by encouraging Cohen not to "flip" and spill the beans to the special counsel.
The report mentioned evidence that "could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen's credibility once Cohen began cooperating."
Many of Trump's actions involved in the Russia investigation do seem ugly, but an obstruction case would be very difficult. At the very least, it is nowhere near as clear as many media outlets are suggesting.
Follow Tyler O'Neil, the author of this article, on Twitter at @Tyler2ONeil.