Robert Mueller at a Senate Intelligence Hearing in 2012. Photo courtesy Medill DC.
If anything of lasting value grows out of special counsel Robert Mueller’s report, the seed may lie in two words in the letter Attorney General William Barr sent to Congress summarizing Mueller’s findings.
Assuming Barr accurately portrayed the gist of Mueller’s statutorily mandated confidential report, the exhaustive investigation turned up no evidence that anyone associated with President Donald Trump’s 2016 campaign “conspired or coordinated with the Russian government in its election interference activities.” In other words, there was no collusion.
But Barr went on to say that Mueller ducked the question of whether Trump obstructed justice in connection with the investigation of the collusion narrative. The fact that there was no collusion is “not determinative” of whether the president might have obstructed justice anyway, Barr wrote. The two key words are “not determinative.”
The nonexistence of a crime absolutely should be determinative of whether anyone can criminally obstruct an investigation of it. In fact, by my reading of the Supreme Court’s ruling in the case of Arthur Andersen more than a decade ago, it may be already. But since the Justice Department does not seem to share my view, we can only hope that – someday – Congress will clearly mandate that a crime must exist before someone can obstruct justice in connection with it. This sounds like an easy lift, but I am not holding my breath.
After making a “thorough factual investigation” of presidential conduct (most of it public, and probably a lot of it conducted on Twitter) that the special counsel viewed as “potentially raising obstruction-of-justice concerns,” Mueller “considered whether to evaluate the conduct under [Justice] Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment,” the attorney general reported. Instead, Mueller described the evidence and legal issues on both sides of the question and declared “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Barr and Deputy Attorney General Rod Rosenstein proceeded to conclude on their own that Mueller’s evidence does not support an obstruction of justice charge, even before considering the Justice Department’s long-standing view that a sitting president cannot be indicted.
My philosophy is to pay precious little attention to most of what people say, and to pay a lot of attention to what they do. As special counsel, Mueller was a prosecutor in everything but his title; a prosecutor is inclined to prosecute whenever a reasonable opportunity presents itself. Since Mueller declined to say that the president did not commit the offense of obstructing justice, let’s look instead at what the special counsel did – or, more significantly, what he chose not to do:
Mueller did not assert that Trump committed an offense of obstructing justice, regardless of whether he could have been charged with that offense while in office.
Mueller did not recommend a prosecution, either while Trump is in office or thereafter, to test whether anything the president did in connection with the investigation that he endlessly called a “witch hunt” rose to the level of a crime.
Mueller did not, as far as we know, recommend that Congress consider obstruction of justice as an impeachable offense.
Mueller did not charge anyone in Trump’s orbit with obstruction for allegedly joining the president in any illegal obstruction attempt.
Mueller’s hesitation did not arise out of any general reluctance to put defendants on trial or to squeeze them for guilty pleas. According to Business Insider, Mueller’s team ended up charging eight Americans who were once associated with Trump’s campaign – mostly for offenses either unrelated to the campaign or for lying to investigators probing the collusion angle. They also charged 12 Russian intelligence officers, 13 Russian nationals and three Russian enterprises suspected of trying to manipulate the 2016 presidential election, as well as two other non-Russian individuals. If there was a case to be made, Mueller would not have been shy about trying to make it.
By his actions, Mueller seems to indicate that he thought the odds were decidedly not in his favor if he had tried to make such a case. In all likelihood, he is correct.
When the president fired former FBI Director James Comey, in part due to what he saw as a pointless collusion investigation (a view now borne out by Mueller), Trump was exercising his legal authority as head of the executive branch. Even absent the appointment of a special counsel, Comey’s firing would not have stopped the FBI and others in the Justice Department from continuing the investigation as long as they thought it was warranted. Though Comey said that Trump asked him to consider dropping an investigation into ex-national security adviser Michael Flynn, the president never went so far as to order Comey, or anyone else, not to prosecute any of his current or former associates, even when he publicly expressed sympathy or admiration for them. The president never, so far as we know, promised or even discussed a presidential pardon or other official action in return for silence or some particular testimony.
I launched my business career at Arthur Andersen, before leaving in 1992 to start my own firm. A decade later, Arthur Andersen was convicted of obstructing justice for making sure that its Enron audit files were purged of extraneous material in accordance with the accounting firm’s long-standing document retention policies, before any legal action over Enron’s financial reports was underway. The conviction essentially destroyed the firm and put tens of thousands of people out of work.
In 2005, a unanimous Supreme Court reversed the correction, albeit too late to revive the firm. Chief Justice William Rehnquist wrote that there are all sorts of innocent conduct that can impede a government investigation, such as an attorney advising a client to invoke attorney-client privilege, or a mother advising her child to assert Fifth Amendment protection against self-incrimination. Arthur Andersen executives had no knowledge of any pending or imminent government proceeding and believed that, until they were notified of one, they were acting within the law by following the firm’s ordinary policy on retaining documents.
“Only persons conscious of wrongdoing can be said to ‘knowingly … consciously persuade’” someone to destroy documents to obstruct an investigation, Rehnquist wrote. “And limiting criminality to persuaders conscious of their wrongdoing sensibly allows [the statute] to reach only those with the level of ‘culpability … we usually require in order to impose criminal liability.’”
We can safely assume that, like most lawyers, Mueller likes to win his cases. The fact that he brought none against Trump is pretty strong evidence that he considered whatever he had insufficient to secure that win.
Requiring the existence of an underlying crime to sustain an obstruction charge need not impair prosecution of other specifically criminal acts that impede law enforcement, such as lying to investigators or making a false report to police. In those cases, alleged offenders are aware of what conduct is prohibited, and prosecutors would have a straightforward obligation to prove facts and intent.
Given the doubt over what actually constitutes a criminal obstruction of justice, lawmakers should take it upon themselves to provide clarity. This is extremely unlikely in the current Congress, which will probably seek to burrow deeper and deeper into the recesses of Mueller’s investigation from now through Election Day 2020. But perhaps it will happen someday.