Special counsel Robert Mueller’s report on his obstruction inquiry into President Trump is like the TV show “Friends”: everybody’s got a favorite episode.
All in all, Mueller examined 10 separate instances — some of them a collection of several related actions — in his obstruction probe. They ranged from Trump’s previously reported leaning on FBI Director James Comey, to private requests made to staff that would undercut Mueller’s probe, to his notorious tweets.
Though Mueller made clear from the outset that he would not declare whether any of Trump’s conduct amounted to a crime, he nonetheless analyzed each episode within a three-prong legal framework of an obstruction offense: whether the act itself was obstructive, i.e. could it have the tendency of impeding the investigation; whether there was a nexus to a proceeding, meaning whether it could be connected to some pending or ongoing legal proceeding; and evidence of Trump’s intent, since prosecutors must show that the motives were corrupt.
Even if Mueller didn’t decide explicitly whether a certain episode amounted to a chargeable obstruction offense, he certainly was able to imply where an obstruction case would have been the strongest.
Although not every individual episode fulfilled all three requirements, they still contribute to the “overall pattern” of Trump’s conduct toward the investigation and “shed light on the nature of the President’s acts and the inferences that can be drawn about his intent,” Mueller said.
“Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence,” Mueller said.
Nonetheless, there were certain episodes where Mueller’s analysis of the evidence he had was particularly strong, even if Mueller did not say outright that it would constitute a chargeable offense.
Ordering McGahn To Get Mueller Fired
This episode was perhaps the “no duh” moment as Mueller went through every episode and how it fit into the framework of criminal obstruction. As was previously reported, Trump in the summer of 2017 repeatedly prodded McGahn to get the Justice Department to axe Mueller, and tried to use a conflicts-of-interest argument that even those around him had already dismissed.
“This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel,” Mueller said.
Mueller also pointed out that even if an investigation continued in the absence of its lead prosecutor, a “factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.”
Mueller said that there “[s]ubstantial evidence” indicating President knew his conduct was under investigation at the time.
There was also “[s]ubstantial evidence” indicating that “the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct — and, most immediately, to reports that the President was being investigated for potential obstruction of justice.”
Requesting That Sessions Publicly Limit Mueller’s Probe To ‘Future Election Meddling’
A bizarre episode fleshed out by Mueller’s report was Trump’s repeated attempts to get his former campaign chairman Corey Lewandowski to deliver a message to Sessions, which would have the attorney general curtail the probe’s focus on Trump and his campaign. Trump, around this time, also ordered Priebus to demand Sessions’ resignation.
After his attempts to fire Mueller went nowhere, Trump dictated a message to Lewandowski to pass along to Sessions ordering Sessions to announce that he is un-recusing and that he is limiting Mueller’s probe to only “investigating election meddling for future elections.”
Mueller interpreted this instruction to be a direction that Sessions “end the existing investigation into the President and his campaign.”
At the time Trump made this initial request of Sessions, the existence of a Mueller grand jury investigation was “public knowledge,” Mueller said, and there was “[s]ubstantial evidence” that Trump’s actions were “intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct. “
Ordering McGahn to Deny that Trump Tried To Fire Mueller
For days after the New York Times reported Trump’s June 2017 attempts to get Mueller fired, Trump demanded that McGahn falsely claim that the story wasn’t true. After McGahn repeatedly said the story was true and thus he wouldn’t seek to publicly challenge it, Trump pressured multiple White House officials to demand that McGahn publicly deny the story. He even floated to one aide that he might fire McGahn if the lawyer didn’t publicly rebut the story.
Mueller noted that the efforts could be considered obstructive if the moves had a natural tendency to constrain McGahn “from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.”
Even though McGahn had made clear to the President he thought the story was true and that he wasn’t going to deny it, “The President nevertheless persisted and asked McGahn to repudiate facts that McGahn had repeatedly said were accurate.”
Mueller noted that McGahn had already spoken to investigators at this point, but given that the inquiry wasn’t complete it was “foreseeable that he would be interviewed again on obstruction-related topics.” Furthermore, Trump’s demands went beyond just a desire to spin the episode in the press, because he continued the orders well past the time a newspaper correction would have made sense, and because he also demanded McGahn write a letter “for our records.”
This “likely contemplated the ongoing investigation and any proceedings arising from it,” and Mueller said that there was “substantial evidence” that Trump’s purpose was “to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”
“Finally, as noted above, the President brought up the Special Counsel investigation in his Oval Office meeting with McGahn and criticized him for telling this Office about the June 17, 2017 events,” Mueller said. “The President’s statements reflect his understanding — and his displeasure — that those events would be part of an obstruction-of-justice inquiry.”