Mueller's Conclusion
The Original Quote (section IV)
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
Mueller's Conclusion On Criminality And His Counter-Defense
Mueller's report on obstruction of justice investigation indicated that There are mounting substantial evidence that Individual 45 (Donald Trump) violated the federal criminal law on obstruction of justice (18 USC section 1512 Tampering with a witness, victim, or an informant).
To support his findings, Mueller analyzed each episode of obstruction of justice conduct in terms of the three elements of the obstruction of justice crime (the obstructive act, nexus to a pending or contemplated proceeding - congressional, administrative, judicial, a corrupt intent). Mueller explained that there is not necessarily an underlying crime to commit the Obstruction of Justice (Mueller had said he did not establish Trump Campaign conspired with Russian in the election interference). He had attribute the motive underlying Trump's obstructive act to his fear for the Congress and The General Public to question the legitimacy of his presidency if an investigation was ongoing and if the media coverage could influence the public opinion.
Mueller perceived Trump's counsel could raise the statute and constitutional concerns to defend Trump. The statute concern is whether those obstructive conduct described in the narrative in Evidence section would be within the scope of federal criminal code when they are not something such as destroying evidence, threaten witness. The constitutional concern is whether it is within the legally defined area that a sitting president was carrying out his Constitutional Article II duty to replace federal officials, instruct or direct his staff or federal appointee to carry out certain commands. To support his finding, Mueller devoted a whole section (III) to discuss his counter- defense on the Statute And Constitutional Defense, extensively citing Supreme Court precedence.
On the statute defense, Mueller mentioned that the most applicable code for Trump's obstruction of justice conducts is 1512(c)(2) instead of 1512(c)(1) [destroy evidence] which is much narrower; and both of which are under section 1512 [Tampering with a witness, victim, or an informant] (c) [Whoever corruptly—]. (see table below). Mueller emphasized that -
- The Text 1512{c){2) Prohibits a Broad Range of Obstructive Acts; that: it is unqualified [i.e. it reaches acts that "obstruct, influence, or impede any official proceeding]; is an independent offense [see the word 'or']; and word 'otherwise" signals that the provision covers obstructive acts that are different from those listed in 1512(c)(1).
- Judicial Decisions Support a Broad Reading of 1512(c)(2) [here Mueller extensively cited court precedence, and in addition he mentioned that 1512(c)(2)'s breadth is reinforced by the similarity of its language to the omnibus clause of 18 U.S.C. § 1503] (see table below)
- The Legislative History of l512(c)(2) Does Not Justify Narrowing Its Text
- General Principles of Statutory Construction Do Not Suggest That Section 1512(c)(2) is Inapplicable to the Conduct [Mueller discussed three principles of Statutory Construction and saying that none of them justify narrowing the reach of 1512 (c)(2)]: The requirement of fair warning in criminal law; the interest in avoiding due process concerns in potentially vague statutes; the rule of lenity.
- Other Obstruction Statutes Might Apply to the Conduct - [Mueller discussed 1503(a); 1505; 1512(b)(3)]: 1503(a) applies generally to obstruction of pending judicial and grand jury proceedings. 1505 broadly criminalizes obstructive conduct aimed at pending agency and congressional proceedings. l 512(b)(3) criminalizes tampering with witnesses to prevent the communication of information about a crime to law enforcement.
Obstruction of Justice Statutes - their Scope and Overlapping
(18 USC chapter 73) section 1512 and section 1503 and section 1505 and section 1519
| statute subsection | code | scope/overlapping |
|---|---|---|
| 1512 (c) (1) | (c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or | narrow |
| 1512 (c) (2 ) | (c) Whoever corruptly— (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, | broad, overlap with 1503 but does not render them superfluous which covers pending grand jury and judicial proceedings; and overlap with 1505 which covers pending administrative and congressional proceedings [attempt requires a more substantial step toward the completed offense than endeavors] |
| 1512 b | Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (3) hinder, delay, or prevent the communication to a law enforcement officer.......of information relating to the commission or possible commission of a Federal offense or.......... | |
| 1503 | Influencing or injuring officer or juror generally.........endeavors to influence, obstruct, or impede (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer...... | broader [endeavors to influence, obstruct, or impede]; overlap with 1512(c)(2) |
| 1505 | Obstruction of proceedings before departments, agencies, and committees..........endeavors to influence, obstruct, or impede | broader [endeavors to influence, obstruct, or impede];overlap with 1512(c)(2) |
| 1519 | Destruction, alteration, or falsification of records in Federal investigations and bankruptcy |
_______________________________________
On the Constitutional defense, Mueller emphasized the parallel power of Congress coexists with the Executive power in the Constitution to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries Against CORRUPT Efforts to undermine their functions, although the Constitution vests the "executive Power" in the President to "take Care that the Laws be faithfully executed." [section 1, 3] [this constitutional responsibility and the prosecutorial discretion was delegated to Attorney General and US Attorneys]; and to appoint officers and to remove those appointed [section 2, cl2].
Usually, those constitutional powers for Congress function in harmony, with the President enforcing the criminal laws to protect against corrupt obstructive acts. But when the President's official actions come into conflict with the prohibitions in the obstruction statutes, any constitutional tension is reconciled through separation-of-powers analysis. Mueller mentioned there is no Department of Justice position or Supreme Court precedent directly resolved the Issue that the president removed FBI director. But Mueller emphasized that there is precedent that Supreme Court had addressed separation-of powers issues. Mueller said that through applying the Court's framework for analysis [i.e. separation-of-powers analysis], he concluded that Congress can validly regulate the President's exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice. And Mueller further said that this Regulation would not undermine President's ability to perform his constitutional duties. Mueller then extensively cited Supreme court precedents to analyze the - [original quote]
- The Supreme Court's Separation-of-Powers Balancing Test Applies In This Context
- The Effect of Obstruction-of-Justice Statutes on the President's Capacity to Perform His Article II Responsibilities is Limited
- Congress Has Power to Protect Congressional, Grand Jury, and Judicial Proceedings Against Corrupt Acts from Any Source
[before this discussion, Mueller also discussed - The Requirement of a Clear Statement to Apply Statutes to Presidential Conduct Does Not Limit the Obstruction Statutes]; and [after this discussion Mueller then discussed - Ascertaining the President Violated the Obstruction Statutes Would Not Chill his Performance of his Article II Duties - in detail]
Mueller's Explanation On His Prosecutorial Decision
Mueller determined not to make a traditional prosecutorial judgment, nor to draw Ultimate Conclusions about the President's conduct. He explained the reason (though he phrased this in a very indirect way) was: (original quotes)
- Office of Legal Counsel (OLC) has issued an opinion finding that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions
- The ordinary means for an individual to respond to an accusation is through a speedy and public trial. A prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator. The concerns about the fairness of such a determination would be heightened in the case of a sitting President.
[author Hong Gan's comment'] -
So far, there are about 500+ (the list is growing) federal prosecutors had signed The LETTER (STATEMENT BY FORMER FEDERAL PROSECUTORS published on medium.com) asserting that if the DOJ's Office of Legal Counsel did not prohibit a sitting president from being indicted, Trump would be charged with obstruction of justice. (here is its news report on slate.com and on obrag.org)
Mueller's discussion/analysis of the rationale and conclusions he draws Applies naturally to the obstruction of justice acts I summarized in the table for Individual 45's further obstruction of justice acts in post-Mueller relevant investigations and may expand to his obstruction of justice acts in cases other than the Russia case.
Obstruction of Justice (Mueller Report) (short form)
for a detailed analysis with Context, and the obstruction of justice conduct presented in terms of the obstructive acts, nexus, and the corrupt intent, go to this post.
Summary [original quote]
The President' s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.
| event | obstruction of justice |
|---|---|
| Conduct concerning the FBI investigation of Michael Flynn | [1/x/16: President had a private dinner with FBI Director James Corney in which he asked for Corney's loyalty.] 2/13/17: President asked Flynn to resign. The following day, the President had a one-on-one conversation with Corney in which he said, "I hope you can see your way clear to letting this go, to letting Flynn go." |
| Reaction to public confirmation of the FBI's Russia investigation | After 3/20/17 President asked Coats to intervene with Corney and "stop" the investigation. President asked that Coats state publicly that no link existed between the President and Russia. The President asked Rogers if he could do anything to refute the stories linking the President to Russia, and The President asked Corney to make a public statement that would " lift the cloud" of the ongoing investigation by making clear that the President was not personally under investigation. |
| events leading up to and surrounding the termination of FBI Director Corney | The act of firing Corney removed the individual overseeing the FBI's Russia investigation. And the President followed the termination with public statements that were highly critical of the investigation. Those actions had the potential to affect a successor director's conduct of the investigation |
| efforts to terminate the Special Counsel | directed McGahn to call Rosenstein to have the Special Counsel removed. In the days before the calls to McGahn, the President, through his counsel, had already brought the asserted conflicts of interest to the attention of the Department of Justice. |
| efforts to curtail the scope of the Special Counsel's investigation | The President 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 explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections |
| efforts to prevent disclosure of information about the 6/9/19 Meeting | On at least three occasions between 6/29/17 and 7/9/17, the President directed Hicks and others not to publicly disclose information about the 6/9/16 meeting |
| efforts to have the Attorney General unrecuse | On multiple occasions, the President spoke with Sessions about reversing his recusal so that he could take over the Russia investigation and begin an investigation and prosecution of Hillary Clinton |
| Orders McGahn to Deny that the President Tried to Fire the Special Counsel | The President's repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel |
| Conduct Towards Flynn, Manafort, [blackout ] | President's actions towards witnesses had the natural tendency to prevent particular witnesses from testifying truthfully, or otherwise had the probable effect of influencing, delaying, or preventing their testimony to law enforcement. Flynn: the President sent private and public messages to Flynn encouraging him to stay strong and conveying that the President still cared about him before he began to cooperate with the government. Manafort: There is evidence that the President's actions had the potential to influence Manafort's decision whether to cooperate with the government. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Mana fort, while also making it clear that the President did not want Manafort to "flip" and cooperate with the government. |
| Conduct towards Cohen | Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not "flip." After it was reported that Cohen intended to cooperate with the government, however, the President accused Cohen of "mak[ing] up stories in order to get himself out of an unrelated jam; and on multiple occasions publicly suggested that Cohen's family members had committed crimes. suppot1 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. |
Obstruction of Justice (post - Mueller Report)
| overall attempt | sub-attempt | obstructive act (time) | justification |
|---|---|---|---|
| attempt to block the release of full Mueller report to Congress | respond to Congress's Subpoena to Barr for full report | 5/8/19 invoked executive privilege | Neither the National Security clause nor the Public Interest clause exist to back the privilege. Russia Interference is a threat to our Democracy and our Sovereign Independence, as a beneficiary of this Gift Putin gave him, trump should recuse himself and stop interfering with the investigation by Congress to prevent any such interference to happen again and to refine the Campaign Finance law to specify the 'Thing' of value to punish those if they would do the similar thing Trump Campaign had done: embraced Putin's offer and actively involved in the dissemination stage of the 'INTERFERENCE. The nature of this 'INVOKE' is another set of abuse of the Executive (Privilege) power and another self-casted CLOUD |
| attempt to block Don McGahn to testify to Congress | |||
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