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President Trump proclaimed victory even before Special Counsel Robert Mueller’s final report was released Thursday, tweeting a photoshopped image of his silhouette beside Game of Thrones style text that menacingly read: “No Collusion. No Obstruction. For the haters and the radical left democrats — ‘Game Over.’”
But Mueller’s report doesn’t clear the president, by any stretch. While it wipes away any criminal entanglements over collusion with Russia, it rolls out page after page of damning episodes in which Trump appeared to obstruct justice — or attempted to.
Mueller lists, at great length, Trump’s efforts to derail the investigation. At one point, he writes that Trump’s attempts to influence the probe failed “largely because the persons who surrounded the president declined to carry out orders or accede to his request.”
“In layperson’s terms, he tried to obstruct justice,” Mary McCord, the former high-ranking DOJ official who helped oversee the department’s investigation of foreign interference in the 2016 election before Mueller was appointed, told VICE News. “I don’t know how you could walk away from this thinking that this isn’t a person who tried to obstruct justice.”
Here are a few examples:
- Trump fired James Comey days after the FBI director told Congress that the bureau was investigating Russia’s interference activities. The next day, Trump met with Russian officials in the Oval Office, saying he had “faced great pressure because of Russia,” which had been "taken off” by Comey's firing.
- Trump went after Mueller with similar force, telling top White House lawyer, Don McGahn, to rein in the special counsel or fire him.
- But McGahn threatened to quit rather than fire Mueller. When that story leaked, Trump told McGahn to lie about it. Again McGahn declined.
- Trump urged then-Attorney General Jeff Sessions to reverse his position and “unrecuse” himself. When he wouldn't do that, Trump “urged Sessions to resign” so that he could replace him with another Attorney General.
- Trump told his former campaign manager Corey Lewandowski to tell Sessions to publicly announce that the investigation was “very unfair” to Trump. The president also wanted Sessions to say that he “planned to meet with the Special Counsel and ‘let [him] move forward with investigating election meddling for future elections.”
- Trump repeatedly instructed his aides to lie, in one instance calling McGahn at home with instructions to call the “Acting Attorney General [Rod Rosenstein] and say that the special counsel had conflicts of interest and must be removed.”
“It is immediately evident that President Trump has repeatedly acted in a way that violates the trust of the American people, making him unfit to be president,” Rep. Andre Carson, a Democrat from Indiana on the House Intelligence Committee, told VICE News.
Now, as members of Congress frantically dig through Mueller’s lengthy report, two questions rise above all the others: Why didn’t Mueller charge Trump with obstruction himself, and what happens now?
The case for obstruction and why Mueller didn’t make a decision.
In page after page of detail, Mueller lays out a convincing case that Trump obstructed justice, legal experts and former prosecutors said.
“The evidence is incredibly compelling — the number and type of incidents is overwhelming,” said Jens David Ohlin, vice dean of Cornell Law School, an expert in international criminal law. “The fact that Trump tried to have Mueller removed as Special Counsel is obstruction of justice, no matter how you cut it.”
The evidence “is very strong, with strong legal analysis to support it, including shooting down the proffered defenses,” said Patrick Cotter, a former prosecutor who once worked with Mueller’s top deputy, Andrew Weissmann.
So, why isn’t it a crime?
“The evidence is incredibly compelling — the number and type of incidents is overwhelming.”
The key reason, according to Mueller, is that Trump is the president. And the president can’t be charged with a crime, according to Department of Justice policy.
Mueller’s report kicks off the obstruction section by noting that a sitting president can’t be indicted due to a DOJ policy dating back to the 1970s, which essentially argues that it would get in the way of his running the country.
“Mueller found significant and notable evidence of obstruction of justice but did not state a conclusion due to the DOJ policy does not permit the indictment of a sitting president,” said Harry Sandick, a former prosecutor with the Southern District of New York.
The standing of that DOJ policy remains up for debate in legal circles, however. Scholars and former prosecutors have argued that if this DOJ policy were ever tested in the Supreme Court, it might not hold up.
Former Independent Counsel Ken Starr, who investigated Bill Clinton in the 1990s, has told VICE News that he thinks “the president can be indicted, but that’s not the Justice Department’s view.”
Mueller, however, uses that DOJ position as his starting point. And he then reasons that, essentially, it wouldn’t be fair to formally accuse the president of a crime, without giving him the opportunity to clear himself in court through a trial.
“Trump did acts that could be successfully prosecuted as obstruction of justice, if he were anyone else,” said Cotter.
In his letter summarizing Mueller’s report to Congress, Attorney General Bill Barr seemingly disagrees, however, saying he believes Trump didn’t commit a crime, regardless of his executive powers. Barr argues that the fact Trump didn’t enter into a criminal conspiracy with Russia suggests he didn’t have the necessary “intent” to obstruct justice.
“Trump did acts that could be successfully prosecuted as obstruction of justice, if he were anyone else.”
Legal experts who spoke to VICE News regarded that view as bizarre, and unlikely to hold up in court.
“This is a weak argument,” said Sandick. “Many people commit obstruction of justice not to prevent an underlying crime but in order to avoid embarrassment or non-legal consequences.”
While Mueller doesn’t conclude that all the obstructive activity adds up to a crime, he also doesn’t close the book on the matter. He explicitly leaves room for Congress to reach a different conclusion, and potentially boot Trump out of office.
Mueller also pointedly notes that the same DOJ opinion explicitly states that a president can still be indicted after he steps down from office.
Quoting that legal opinion, the report flags both possibilities on the first page of the obstruction section: "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.”
Here’s where congress comes in.
The report explicitly nods to the role of Congress in holding presidents accountable.
“The conclusion that Congress may apply the obstruction laws to the President 's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law,” Mueller writes.
And Democrats in Congress indeed appeared outraged.
“Special Counsel Mueller’s report paints a disturbing picture of a president who has been weaving a web of deceit, lies and improper behavior and acting as if the law doesn’t apply to him,” said House Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer in a statement.
“It’s now more important than ever for Congress to dig deeper into their deeply ingrained, and deeply unethical behavior.”
Rep Jerry Nadler, the House Judiciary Committee Chairman, went further: “Even in its incomplete form, the Mueller report outlines disturbing evidence that President Trump engaged in obstruction of justice and other misconduct.”
But it’s far from clear that enough Republicans in the Senate will desert Trump to allow an impeachment proceeding to succeed. Nor is it clear if Democrats are even prepared to go that route.
If Congress does nothing, the Mueller report still carries immense and unpredictable political ramifications for Trump: After he steps down and loses his presidential shield, he could, potentially, still be indicted for obstruction of justice.
That looming threat could throw a volatile new element into the 2020 presidential election, with the prospect of criminal liability for Trump if he loses his bid for reelection.
“Given the DOJ policy of not charging the sitting president, the team approached the job differently,” said Rebecca Roiphe, a former prosecutor and expert on prosecutorial ethics at New York Law School. “They decided instead to develop the facts with an eye to getting most if not all of the information to the public and to Congress, so the president could be held accountable in the way in which the Constitution provides — through either impeachment or the electoral process,” Roiphe said.
Cover: President Donald Trump stands near a portrait of George Washington at a Wounded Warrior Project Soldier Ride event in the East Room of the White House, Thursday, April 18, 2019, in Washington. (AP Photo/Andrew Harnik)