The overblown Russian collusion balloon has burst. Democrats, their handmaidens in the mainstream media and other Trump haters are apoplectic that Special Counsel Robert Mueller’s investigation found “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.” However, the Trump haters will never give up trying to unseat him by any means possible. They now are latching on to the Special Counsel’s evidentiary findings relating to possible obstruction of justice, even though the Special Counsel’s Office “did not draw ultimate conclusions about the President’s conduct.” The Mueller report admitted that the evidence it “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.” Nevertheless, the report concluded with tantalizing language that excited the imaginations of Democrats, the mainstream media and others who want to take President Trump down. The report’s authors stated that “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.”
The New York Times ran a lead editorial on Friday entitled “Mr. Mueller’s Indictment.” NBC similarly called the Mueller report “a brutal indictment” of the president. Of course, there was no such indictment. The Trump haters claim the reason was only because of the Justice Department’s long-standing opinion that a president cannot be indicted while serving in office. It would be unfair to reach a conclusive determination that the president was criminally liable for obstruction of justice without the ability to charge him, the report’s authors argued, since he would not have the opportunity to clear his name in an independent adjudicatory forum. Nevertheless, the Mueller report proceeded to unfairly raise suspicions regarding the president’s intent to commit an obstruction of justice offense with a one-sided prosecutorial narrative based on a worst-case interpretation of “circumstantial evidence.” The report emphasized that it was not ruling out the possibility that the president did commit obstruction of justice, pointedly refusing to “exonerate” him.
It is not the responsibility of a prosecutor to “exonerate” someone suspected of committing a crime. To the contrary, the presumption of innocence means the burden of proof is on the prosecutor to prove that the suspect committed the alleged crime beyond a reasonable doubt. Special Counsel Mueller fell far short of meeting that standard of proof or of even presenting sufficient proof to satisfy the lesser standard of “clear and convincing” evidence. He had the option of asking a grand jury to name President Trump as an unindicted co-conspirator, which was what happened to former President Richard Nixon. Despite an attempt at a self-serving justification for not doing so in this case, it is more likely that Mr. Mueller decided he did not have enough evidence to support such a request to a grand jury.
Corrupt intent is a necessary element for a prosecutor to prove an obstruction of justice offense. As the Mueller report defined it, quoting cases, the word “corruptly” means acting “knowingly and dishonestly” or “with an improper motive” or in a “wrongful, immoral, depraved, or evil” manner. The Mueller report repeatedly stated that the evidence it cited “could” support a finding of improper motive. The word “could” means to “express possibility esp. slight or uncertain possibility,” according to the Cambridge Dictionary definition. In the context of describing what the evidence “could” show about President Trump’s intent, the evidence is simply being used to suggest one possible explanation amongst several.
The report also referred on various occasions to “evidence” that it claimed “supports” an inference or “supports” a conclusion. “Evidence” can be used to “support” one theory of a case. However, it does not rule out other equally plausible possibilities based on the same evidence or on other evidence. The Mueller report acknowledged that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference” – i.e., no underlying crime by the president to try and cover up – but argued nevertheless that “the evidence does point to a range of other possible personal motives animating the President’s conduct.” (Emphasis added) All that the Mueller report did, in other words, was to present a list of worst-case possibilities regarding what the president might have intended in casting around for ways to halt or influence the direction of the ongoing investigations, all to no avail.
With one exception, the report did not fully address equally plausible but innocent motives for the president’s actions described in the obstruction of justice portion of the report. It is that one overriding exception, however, which undercuts much of the rest of the report’s discussion of the president’s intent. The Mueller report admitted that, with respect to the Russian collusion portion of the investigation, the “evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia.”
The report acknowledged the president’s frustration with former FBI Director James Comey’s refusal to publicly acknowledge what he had told the president in private – that the president was not under investigation by the FBI for conspiracy with the Russians to improperly influence the 2016 presidential election. “Substantial evidence indicates that the catalyst for the President ‘s decision to fire Comey was Comey ‘s unwillingness to publicly state that the President was not personally under investigation, despite the President’s repeated requests that Comey make such an announcement,” the report said. At another point, the report said that the “evidence shows that the President was focused on the Russia investigation’s implications for his presidency – and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia.” At the same time, the report stated that “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation and the President affirmatively told Comey that if ‘some satellite’ was involved in Russian election interference ‘it would be good to find that out.’”
In short, President Trump had good cause to fire Comey, which was within the president’s constitutional authority to do in any event. Comey refused to help stabilize the Trump presidency in its early stage when Comey would not publicly dispel rumors that President Trump was then a target of the FBI’s Russia investigation, which Comey knew to be untrue. Coupled with the lack of evidence to support a finding that President Trump tried to interfere with the FBI’s Russia investigation, there was nothing during the pre-Special Counsel period on which to base a credible finding of corrupt intent on the president’s part to obstruct justice.
After President Trump learned about the appointment of Mr. Mueller as Special Counsel, the evidence cited by the Mueller report showed the president’s primary concern remained the viability of his presidency – not concern over his own or his family’s potential criminal exposure, harm to his business, or personal embarrassment. The report quoted the president as saying, “Oh my God. This is terrible. This is the end of my Presidency.” On another occasion, the president said, according to the Mueller report, “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.”
Believing that he was continuing to be treated unfairly as part of an unrelenting partisan effort to prevent him from fulfilling his public policy priorities for which he was duly elected, President Trump considered either having Mr. Mueller removed, or having the scope of the Special Counsel investigation limited to foreign meddling in future elections. However, the president took no substantial steps towards achieving those goals other than to jawbone White House Counsel Donald McGahn and his former campaign manager Corey Lewandowski to get the ball rolling in such directions on his behalf. Nothing came of the jawboning. President Trump soon gave up trying. Mr. Mueller remained as Special Counsel and the investigation proceeded within its original broad scope. By contrast, Richard Nixon did not stop until he found someone in the Justice Department, Robert Bork, willing to fire Special Prosecutor Archibald Cox.
In short, the Mueller report itself presented substantial evidence establishing the president’s legitimate concern about his ability to govern, to conduct credible foreign relations with his counterparts around the world, including Russia, and to enact the agenda on which he was elected. This evidence alone should have been conclusive on the obstruction of justice issue because it would render it virtually impossible for a prosecutor to prove the corrupt intent element of an obstruction of justice charge against the president beyond a reasonable doubt.
Moreover, the Special Counsel’s Office did essentially exonerate the president of wrong-doing regarding disclosure to government authorities of sensitive emails pertaining to the overly hyped June 9, 2016 meeting at Trump Tower between Russians and senior Trump campaign officials. The Mueller investigation found “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.” Trying to mislead the press about the purpose of the meeting was no doubt offensive to the media, but it does not constitute a criminal offense.
Finally, the Trump administration’s unprecedented cooperation with the Special Counsel’s Office in making reams of documents and witnesses available, and the president’s decision to waive executive privilege, belie any finding of corrupt intent.
While Special Counsel Mueller punted on whether President Trump had committed an obstruction of justice criminal offense, Attorney General Bill Barr and Deputy Attorney General Rod Rosenstein reached a final determination. As Attorney General Barr stated in his Summary of the Mueller Report last month, “In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.”
The case against President Trump for alleged conspiracy with the Russians to improperly influence the 2016 presidential election and for alleged obstruction of justice should now be closed. There is insufficient evidence to prove either offense. However, the Trump haters will not relent in their monomaniacal obsession to take President Trump down. They need to watch out, lest their hate for Trump ends up devouring them instead.