By Mark Medish and Jonathan M. Winer
October 14, 2021
A key item in Attorney General Merrick Garland’s inbox is gathering dust: Volume 2 of the report by Special Counsel Robert Mueller , whose team investigated possible obstruction of justice by Donald Trump as president. Mueller originally submitted the report in March 2019 to Trump’s Attorney General William Barr, who chose to do nothing (or worse than nothing).
Recent actions by the former president to urge witnesses not to cooperate with congressional subpoenas in connection with Congress’s investigation of the Jan. 6 insurrection are a reminder of the salience of the Mueller Report’s second volume.
The Mueller report made clear that its obstruction of justice inquiry focused on President Trump’s conduct toward law enforcement officials overseeing investigations into the Trump-Russia allegations. The report provided the blueprint for a potential indictment for obstruction. Indeed, one of Mueller’s top prosecutors, Andrew Weissmann, has revealed that he advised Mueller to state in the report itself that Trump committed obstruction of justice. He also wrote in the New York Times back in November:
We amassed ample evidence to support a charge that Mr. Trump obstructed justice. That view is widely shared. Shortly after our report was issued, hundreds of former prosecutors concluded that the evidence supported such a charge.
Indeed, it was over 1,000 former prosecutors who reached the conclusion that “the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”
In essence, volume 2 of the Mueller report contained a bill of particulars based on factual findings that constitute a prima facie case for charging obstruction of justice. These included finding that Trump attempted to persuade then FBI Director James Comey to “see your way to letting this go,” his firing FBI Director Comey for refusing to shut down the investigation, his suborning perjury by the White House Counsel Don McGahn, his pressure on Attorney General Jeff Sessions to curtail the probe, and his efforts to have the Special Counsel removed.
Intent is, to be sure, an element of the offense. To convict, a criminal obstruction charge requires proof of intent beyond a reasonable doubt. That is a question for trial. Regarding intent, the report makes clear that “soon after the firing of Comey and the appointment of the Special Counsel, the President became aware that his own conduct was being investigated in an obstruction of justice inquiry. At that point, the President engaged in … conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.”
The report goes on to say: “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 judgement.” Furthermore, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
In essence, the Mueller Report then chose not to “make a traditional prosecution decision about these facts,” since they applied to a sitting President.
There can be little doubt that an ordinary citizen found to have engaged in a similar pattern of conduct with law enforcement would be subject to prosecution. Trump’s pattern of obstructing justice in the Russia investigation was flagrant, persistent, and on its face met the legal standard forth in federal law for criminal obstruction.
Special defenses relating to powers of office might be available to an ex-president defendant, but that’s an issue for the courts. The president is not above the law. As the final passages of the Mueller report stated:
[T]he protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882); see also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.
Nor, surely, is a former president above the law, especially one who continues to engage in a pattern of conduct by trying to get his former aides and associates to defy congressional subpoenas relating to the Jan. 6 insurrection. His efforts have so far resulted in Stephen Bannon, who had no official government position in 2020 and accordingly only a laughable claim to executive privilege, stating he would openly defy Congress by not providing any requested documents or testimony. And even if there were a colorable claim (which there is not) to executive privilege for some of the witnesses over some specific questions, that would still not justify their refusal to appear before Congress.
The federal obstruction of justice statutes explicitly covers obstruction of congressional, as well as all Executive Branch investigations. For good reason.
When Mueller issued his reports, it was said that, due to Justice Department policy, a sitting president could not be indicted and instead Congress could opt to impeach and remove a president from office. If Congress declined to act, as it did, the statute of limitations would be tolled and the possibility of indictment would resume after the president again became a private citizen.
The federal statute of limitations for obstruction of justice lasts five years. The window for prosecutorial review remains wide open.
Even skeptics about the underlying Russia probe covered in Volume 1 should agree that it is a federal crime to intentionally influence someone to withhold a document from or impede a pending proceeding before any U.S. agency or Congress or to tamper with a witness. Obstruction is a criminal offense that stands on its own independent of any case about electoral collusion with a foreign power.
Failure of the Attorney General and Deputy Attorney General to review this matter and make a formal prosecutorial determination on whether Trump’s actions constitute criminal obstruction would be a dereliction of duty, transmitting a dangerous signal of impunity from the Justice Department. It would amount to saying: A president may never be prosecuted for crimes while in office. An ex-president will then be given a free pass for those crimes after leaving office. Such a free pass invites any ex-president possessing corrupt intent to engage in continuing obstruction, without consequences.
Granting a president carte blanche to obstruct justice is at odds with the rule of law and America’s founding principles which abhorred arbitrary rule of tyrants. As those over 1,000 former prosecutors said, “we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk.”
Attorney General Garland, a former federal judge, has been described as an “institutionalist” who rightly seeks to protect the neutrality of the Justice Department and to avoid the appearance of partisanship. That prudential philosophy has profound merit. The North Star of “institutionalism” must be to preserve and protect the constitutional order from abuse of power that could end up toppling our Republic. Garland should reopen and review the obstruction case against Donald Trump.