The Mueller Report: Why Trump is so inept he cannot even obstruct justice effectively

The Mueller report is out and if we learned anything from it, three things are clear.  One, the Report changed few minds.  Two, there was never a chance that Mueller would indict Trump.  Three, Trump is so inept he cannot even effectively obstruct justice.
The Mueller report came out Thursday morning–all 458 pages, single-spaced.  It is a dense, detailed study rich in facts and explanations of law.  But within less than one hour the media was already reporting on its contents or, better, asking experts or partisans what they thought.  Often reporting was pulling out one line here or there and discussing it. For the most part, all this reporting and reaction was useless.  To comment on a report when you have not read it is irresponsible, and even simply reading the executive summaries–as mostly were reported on–was similarly bad journalism or commentary.
But equally, the early evidence on the reaction to the Mueller report has been that it changed the minds of no one.  If the narrative before the Report was that Trump and his associates were guilty or they were not, the Report’s findings have not changed anyone’s mind.  Perhaps t his is related to the fact that almost no one will read the report and judge it themselves.  It is not a total vindication of Trump, and it is not a total condemnation of his administration.  It is more nuanced.
But in reading the Report, it is also clear that there was never a chance the president.  When Mueller began his investigation, he started with the legal premise that a sitting president cannot be indicted for a crime.  This belief was based on several Justice Department and Office of Legal Counsel memoranda from the Nixon to the Clinton era investigations holding this position.  The Muller Report, volume II, page one states: “[T]his Office accepts the OLC’s legal conclusion for the purposes of exercising prosecutorial jurisdiction.”  This is a major point largely missed by everyone.
The opening pages of part II of the Mueller report explains its legal reasoning.  It notes the heavy burden placed upon a sitting president were he to be indicted for a crime.  Second, the Report noted also ( page 2) it wanted to avoid the Nixon situation where a report concluded the president committed a crime but could not be indicted, resulting in him being named an “unindicted co-conspirator” as Nixon had been labeled.  There is, according to the Report, no way the President could clear his name, again leaving a cloud over the presidency that could not be cleared.  Better to indict and let the adversarial process render a verdict, or not indict than leave it in limbo.
As admirable perhaps as the Mueller investigation meant to be, it nonetheless left Trump in limbo because it is clear also that the Report investigated the president under a standard of proof much higher than would be applied to anyone else.  Specifically, when looking at the obstruction of justice issue–Did Trump seek to impede the Russian investigation?–he was given every benefit of the doubt.  Part II reviews numerous instances of possible obstruction, such as firing of the FBI director Comey, but concludes no in every instance.   
The Report does so for at least a couple of reasons.   One, there is the difficulty of sorting out the statutory requirement of showing corrupt intent on the part of the president that could clearly be separated from the president’s authority under Article II, sections one and three which vest executive power in him and allow him to take care that the laws be faithfully executed.   Did the president take some actions to impede an investigation or legitimately acting within presidential power?   There is just enough doubt in the facts that would have made guilt under American law beyond a reasonable doubt.
But despite the mantra in our society no one is above the law or that we all stand equally before the law, the Report makes clear the president does not.    One of the few good things in the Report is to note how so many of Trump’s people did their best to resist the worst of Trump’s impulses by refusing to carry out his orders.  Had they not disobeyed or disrupted Trump’s actions the case for obstruction would have been even greater to resist.  But think about what the Report said.  Look at the president’s conduct with the benefit of doubt to him.  Look also at how his staff impeded his actions. 
What we see in reading between the lines are indications of clear intent to obstruct, but for intervention of staff. No one else but the president gets the break.  Saying the president has not obstructed justice because others prevented him from accomplishing that act is far from saying the president did noting wrong–he was simply not successful in doing what he appeared to want to do.  It is like saying I am not guilty in trying to kill someone because when I shot the gun someone bumped my hand so that I would miss.  I still intended to kill and the law will prosecute me for attempted murder. 
Here, the Report arguably says Trump tried but failed to obstruct justice.  This is a synopsis of the entire Trump presidency–one so inept that it cannot even obstruct justice properly. It is a report that still leaves the president in limbo–decrying that simply not being indicted does not clear Trump of wrongdoing in terms of ethics, leadership, or personal character.  That is why after the initial dust from the Report settled, Trump seethed. Mueller and Attorney General Barr did not indict, but they also left the president in the limbo the investigation sought to avoid.

What the Mueller Reports Says...and Not

For anyone wanting a clear ending and definitive Hollywood ending and answer in the Mueller
investigation of Russian interference in the 2016 US elections and the role Trump and his campaign had in colluding with them, they will be disappointed.   The final report, based on the US Attorney General’s four-page summary, offers something for everyone, assuring that for now that the issues raised in it will live on into the 2020 US presidential election.
When Robert Mueller was brought on as special investigator, he was given a narrow mandate to determine whether Russians sought to interfere with the 2016 US elections.  On that matter Mueller was definitive–yes.  That conclusion alone is significant because it will have a potentially major impact on US-Russian Federation relations, including putting pressure on Trump to take a harder line toward Russia and Putin.  With members of Congress–both Democrats and Republicans–wary of Trump’s soft approach toward Russia, this part of the report may well unite them in legislation that will go against the president.
If one were to end the report about Russian interference that would cover the core of the Mueller investigation and what it was mandated to investigate.  But the report also looked at whether Trump or his campaign colluded or aided and abetted this interference. Again Mueller reaches a definite answer–no.  It is possible that Trump and his associates did several things to help themselves financially, but as a matter of law they not commit acts that broke the law.
The third issue is whether Trump obstructed justice and the Muller investigation.  Here the report finds evidence on both sides, declaring that the investigation neither proves nor exonerates him.  The reason, presumably, hinges on the nuances of American law which requires proof both that someone engaged in certain acts and they did so with the appropriate mental state of mind or intent.  Here, one can speculate that Mueller found that Trump had done certain acts but could not determine whether his act rose to the level to prove intent of obstruction. Mueller threw this to the Justice Department and regular prosecutors to make that call and they said no. 
This is the point where the politics will kick in.  Democrats will demand the full report and want to talk to Mueller and Justice Department officers to determine if they made the right call.  This  review of conclusions, while entirely legitimate, is wrapped into the middle of partisan politics and a 2020 election that has already reached conclusions on Trump’s behavior, regardless of what the report said.  Mueller, in leaving open the obstruction question, and in the Attorney General not releasing the final report yet, guarantee that the investigation and final conclusions will not go away in terms of issues. 
But whether the Democrats should continue to dwell on it versus move on to other matters is also a good question.  The Democratic Party base will not let this matter go and they were counting on a clear answer of Trump guilt or culpability to help them in 2020.  They did not get that.   Democrats now need to move on to substantive issues to unite them and not simply run against Trump.  Conversely, for Republicans and Trump, the report also guarantees the problems will persist.  It only addressed a narrow set of issues, leaving open other questions about Trump’s business dealings and other matters which are still the objects on other congressional and criminal prosecutions.
Overall, the Mueller report itself, while definitive in what it was supposed to investigate, will hardly be politically definitive and it leaves open many issues unresolved.

Giuliani’s admission about paying hush money to Stormy Daniels strengthens special prosecutor’s obstruction of justice claims and why presidential pardons may make problems worse for Trump

Note:  This is a press release I am sending out today.

The obstruction of justice and other potential criminal charges against Donald Trump were
strengthened by Giuliani’s admission about paying hush money to Stormy Daniels, and the use of presidential pardons may make problems worse for the president.

SAINT PAUL, MN (PRWEB) May 3, 2018 -- Hamline University professor David Schultz, noted expert on constitutional law and legal ethics, argued today that obstruction of justice and other potential criminal charges against President Donald Trump were strengthened by Giuliani’s admission about paying hush money to Stormy Daniels.  He also argued that presidential pardons to shut down the investigations may constitute new evidence of obstruction of justice.

According to Schultz: “Giuliani’s admission closes an important circle, connects critical dots, and portends far more serious problems for Trump than simply a violation of campaign finance laws.  Trump always had plausible denial that his attorney Michael Cohen had gone rogue when he made payments to stormy Daniels to silence her, even though the general presumption is that lawyers act as agents for their clients.   Acting alone,  one could argue that Cohen’s payments were independent expenditures meant to influence the presidential campaign and therefore should have been  reported, as required by federal campaign finance law. Giuliani’s statement clearly ties Cohen, to Trump and Daniels and it now raises questions about possible illegal activity of Trump or the Trump campaign regarding the 2016 election.  Even more powerfully, for a president who claimed he has done nothing wrong, this connection impeaches Trump’s credibility, raising questions about his motives regarding other criminal allegations he is facing, as well as whether he took other action to obstruct justice.”

Schultz, author of more than 35 books and 150 articles on various aspects of American law and politics, including his most recent two volume Constitutional Law in Contemporary America, (West Academic), said on Thursday that critical to establishing obstruction of justice under federal law is showing a corrupt intent meant to impede a criminal investigation.  The acknowledgment of the Stormy Daniels payment provides evidence of an intent to hide or obstruct information, leaving open interesting questions regarding whether he has undertaken other actions with the intent of concealing information or obstructing the legal.

Additionally Schultz, who teaches government ethics and criminal law, also said: “If Trump thinks that issuing pardons to his attorney Michael Cohen or other will stop the criminal inquiry, he is wrong.  First, while presidents may issue pardons, if the purpose of the pardon is to impede a criminal investigation, that pardon may be evidence of obstruction of justice.  Second, the use of a pardon will remove the ability of individuals to assert their Fifth Amendment right to remain silent, thereby making it more probable that people such as his attorney would potentially have to provide against evidence against the president.  Any pardons at this point by the president are suspect and potentially more damaging to the president than even Giuliani’s statements.

Schultz is a professor of political science at Hamline University. He has taught classes on American government and election law for more than 25 years. A  three time Fulbright scholar and winner of the Leslie A. Whittington national award for excellence in public affairs teaching,   David Schultz is the author and editor of 35 books and 150 articles on American politics and law and is a frequently quoted political analyst in the local, national, and international media.

--End–

Trump and Obstruction of Justice: What did the President do and why?

The penultimate question of the 1973-74 Senate Judiciary Committee investigation of Richard Nixon and Watergate was Republican Senator Howard Baker’s “What did the President know and when did he know it?”  Now the question to be asked is “What did the President do and why?”
Former FBI director James Comey’s testimony on June 8, was significant in many ways.  The first was that it represented a major transformation in the debate surrounding Donald Trump and his presidency.    If before Thursday the main line of questioning was Russian involvement in US elections along with Trump or his surrogates collaboration with them (and that is still a major and important focus of the congressional and special prosecutor investigations), the Comey testimony shifted the debate to questions of whether the president engaged in obstruction of justice when he took certain actions against him or others.  Second, the testimony places Trump and his defenders on the defensive, further damaging the policy agenda of a presidency that is already dead.
Prior to Thursday partisan Democrats fantasized about a Trump indictment and impeachment.  But that was the talk of MSNBC ratings mongering and hyperventilated blog sites.  Republicans largely could ignore this talk, dismissing it as partisan chatter.  Yes the NY Times, CNN, and the Washington Post speculated on this too, but again more to sell papers than anything else.  Comey’s testimony changed that, putting Republicans, conservatives, and Trump supporters on the defense.  The focus of the public discourse , even on Fox national news, now is on whether Trump broke the law, specifically engaging in criminal obstruction of justice.  The former now are debating on the latter’s terms, and this is not good for Trump.
Too much of the debate since Thursday has been predictably partisan, breaking along Republicans acquitting Trump and Democrats convicting him.  But there is no question that the debate now centers on the two questions of what did the president do and why?  The reason for this gets down to basic criminal law–proving actus reus and mens rea.
For anyone who has every taken a criminal justice law  course they know that there are two elements to proving someone is guilty of a crime.  First one must prove that one did a specific deed in question that is prohibited by law–actus reus–and second, that the person acted with the requisite mental intent–mens rea.  Criminal liability is not strict liability–the government must also prove some level of intentionality, and do so beyond a reasonable doubt.  In a free society such as the United States, the government carries the burden to prove guilt, and a jury trial is the classic mechanism of determining that, assigning to 12 reasonable people the task of ascertaining whether the burden has been met.
Obstruction of justice is defined in various places in federal law.  18 U.S. Code § 1505 declares as obstruction of justice:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—


Section 1505 has two important requisites.  One refers to actions that seek to obstruct, impede, or influence some proceeding by any federal agency or Congress (actus reus), and the other to the corrupt purpose (mens rea).  To show that Trump engaged in both one needs to prove both elements and that there is a nexus or connection between the two.
Much of the Comey testimony centered around actus reus–what did Trump actually do.  There were accusations about whether Trump said certain things to Comey such as call him to encourage him to stop the Flynn investigation.  While Trump has called Comey a liar and vice-versa, it would be hard to impeach Comey.  Yes, he may be a disgruntled former employee with reasons to get even, but given his long track record in government there is no reason to question Comey’s veracity under oath  where lying to Congress would bring with it both a major blow to his reputation and a possible felony charge for lying to Congress.  Some of the Trump defenders are factually challenging the Comey testimony, but instead the real battle has shifted from what the president did to what he intended.
Trump’s defenders are arguing that the president did not fire Comey to impede any investigation.  They offer some alternative reasons for his dismissal.  But increasingly they seem to be arguing a case of ignorance–that Trump simply did not understand how government works and the protocols about contacts between the president and his staff, especially those who do investigations.  Such a defense is damning the president with faint praise.
Such a defense first effectively  concedes the president is clueless about how government works and what a president can do. “Trump is not a crook because he had no idea what he could do as president.”  For someone who argued his fitness to be president, this is not a ringing endorsement of the president by his defenders.   Moreover, such a defense holds Trump to a lower standard of conduct than his predecessors.  I do not recall anyone giving Obama or previous presidents grace periods to learn their job or get up to snuff in terms of understanding their legal and constitutional duties.  One is president from January 20, upon taking the oath of office.  In addition, even if the president did nothing illegal, I see no one discussing the ethics of this issue.  By that, under any code of conduct that would should hold any public servant to, Trump’s behavior with Comey (and perhaps more broadly as president) is hardly the model of ethical conduct and decorum.  It should not just be enough to hold someone up to a minimum legal standard of conduct; the ethics of public service sets a higher bar and none of Trump’s defenders seem nowhere near defending the ethical propriety of their man.
Second, how many times have we all heard the phrase “ignorance of the law is no excuse.”  I cannot commit a crime and then say I am innocent because I did not realize I am not supposed to rob, kill, etc.”  Intentionally is generally about wishing to do something prohibited by the law, not necessarily intention to break a law I know that exists.  If I intend to kill someone I am guilty of murder even if I did not know the murder statute exists.  To say that Trump may have intended to fire Comey to impede an investigation but that the president did not violate a law because he did not understand how government operates is simply besides the point.
Third, even if Trump did not understand what he could do as president, the Justice Department is full of attorneys who could have advised him.  Other presidents turn to counsel to get advice, there is no reason for Trump not to have done so.  Fourth, some argue that there is no smoking gun to prove intent, such as an actual memo or tape recording, and therefore any speculation about mens rea is merely circumstantial.  In reality, determinations of intentionality are often if not usually circumstantial; intent or what is in our hearts is often proved by what we do under specific circumstances.  Thus, to show Trump acted with requisite intentionality to violate federal law, the standard would be whether 12 reasonable jurors with open minds would come to believe beyond a reasonable doubt that Trump intended to corruptly impede, obstruct, or influence a federal investigation.  The simply answer is right now we do not know, the investigations are only beginning and they will take time.  We should neither rush to judgement nor dismiss the accusations at this point, the fact finding has only just begun.
These investigations are a problem for Trump.  Once Nixon, Reagan, and Clinton were facing investigations, their presidencies effectively ended.  But for all three in occurred in their second terms after each has achieved significant policy victories.  Trump has no legislative policy or other real victories to count, and his presidency is now hobbled from its inception.  The irony  here is that if one loved the gridlock of the Obama years, we now will face that at least as long as the Mueller and Congressional investigations continue, which certainly will be well into 2018.