Table of Contents

1. Objective
2. Basic Argument
3. Obstruction of Justice
4. Facts of the Case
5. Mueller Report Analysis
6. Letter signed by a Thousand Former Federal Prosecutors
7. Barr’s Summary of Mueller Report, March 24, 2019 Excerpt on Obstruction of Justice
8. Conclusions
9. Addendum
   1. Mueller Report: Differences between obstruction of justice by a president and typical obstruction-of-justice cases

Objective

• The Mueller Report presents evidence of ten instances of obstruction of justice.
• This page analyzes the Report’s argument for one of these: that Trump obstructed justice by directing Don McGahn to tell the Acting Attorney General to remove the Special Counsel.

Basic Argument

1. A person obstructs justice if he/she does something with the specific intent to influence, obstruct, or impede a judicial proceeding.
2. On June 17, 2017 Trump directed Don McGahn to inform the acting Attorney General that the Special Counsel had conflicts of interest and must be removed.
3. Trump’s intent in directing McGahn was to influence, obstruct, or impede Mueller’s investigation.
4. Therefore, Trump obstructed justice

Obstruction of Justice

• Definition
  • A person obstructs justice if he/she does something with the specific intent to influence, obstruct, or impede a judicial proceeding.
• Example
  • A defendant in a criminal trial who bribes a witness to lie is guilty of obstruction because he did something (bribing a witness) with the specific intent to influence, obstruct, or impede a judicial proceeding (the trial).
• Elements of Obstruction
  • To prove obstruction of justice three elements must be established:
    • Obstructive Act
    • Nexus between the obstructive act and a judicial proceeding
    • Intent
• Obstructive Act
  • An obstructive act is an act having the natural and probable effect of interfering with or impeding a judicial proceeding
  • Example: a defendant, Joe Doe, bribes a witness to lie
  • Not an example: Joe Doe prays he’s found innocent
• Nexus between obstructive act and the judicial proceeding
  • A nexus exists if
    • As an objective matter, the defendant must act “in a manner that is likely to obstruct justice.”
    • As a subjective matter, the actor must have “contemplated a particular, foreseeable proceeding.”
  • A nexus exists in Joe Doe’s case
    • Obj: Joe Doe’s bribing a witness is likely to obstruct justice
    • Sub: Joe Doe had contemplated his criminal trial
  • Versus sticking pins in a voodoo doll to kill the witness, which doesn’t satisfy the objective condition.
• Intent
  • The actor has intent if he/she acts with “an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct” the relevant proceeding.”
  • Joe Doe intends to subvert, impede or obstruct his trial.
  • Versus Joe Doe paying back a dollar a witness had lent him for coffee

Facts of the Case

• Story in the Washington Post, June 14
  • “On the evening of June 14, 2017, the Washington Post published an article stating that the Special Counsel was investigating whether the President had attempted to obstruct justice. This was the first public report that the President himself was under investigation by the Special Counsel’s Office, and cable news networks quickly picked up on the report.” (Page 84)
• Series of Tweets, June 15
  • “Beginning early the next day, June 15, 2017, the President issued a series of tweets acknowledging the existence of the obstruction investigation and criticizing it.” (Page 84)
• Phone calls to McGahn, June 17
  • “On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed.” (Page 85)
    • “On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod.” (Page 85)
    • “When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.” McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.” (Page 86)

Mueller Report Analysis

Letter signed by a Thousand Former Federal Prosecutors

• “The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:
  • The President’s efforts to fire Mueller and to falsify evidence about that effort.
  • The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct.
  • The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.”
• “We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report.”

Barr’s Summary of Mueller Report, March 24, 2019
Excerpt on Obstruction of Justice

• “After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.
• In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction. Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding. 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.”

Conclusions

• The Mueller Report effectively concludes that “substantial evidence” exists that Trump obstructed justice.
• The letter from former federal prosecutors asserts that
  • “the evidence of corrupt intent and connection to pending proceedings is overwhelming”
  • “the overwhelming weight of professional judgment would come down in favor of prosecution”
• According to William Barr the “evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
• Thus the Mueller Report concludes that “substantial evidence” exists that Trump obstructed justice.  The Attorney General asserts the evidence does not “establish” obstruction of justice.

• A critical failing of Barr’s assessment is not providing an argument that Mueller’s evidence doesn’t establish obstruction of justice.  That would be like a defense attorney presenting the closing argument:
  • Ladies and Gentlemen of the Jury. The prosecution has failed to prove my client guilty beyond a reasonable doubt. You must therefore find him not guilty.  Thank you.
• Barr hints that he thinks the problem is with intent, saying that the absence of evidence of an underlying crime “bears upon the President’s intent with respect to obstruction.”  That is, why would the president obstruct justice if there were no coordination with Russia to influence the election?
• Two possibilities
  • Given “multiple links” between Russia and the campaign, Trump may have believed that the campaign indeed coordinated efforts with the Russians.
  • Trump may have feared that the investigation might uncover other wrongdoing or politically embarrassing behavior.

Addendum

Mueller Report: Differences between obstruction of justice by a president and typical obstruction-of-justice cases

• “First, the investigation concerned the President, and some of his actions, such as firing the FBI director, involved facially lawful acts within his Article II authority, which raises constitutional issues discussed below. At the same time, the President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses—all of which is relevant to a potential obstruction-of-justice analysis.” (Vol II, Page 7)
• “Second, unlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference.” (Vol II, Page 7)
• “Third, many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws. If the likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system’s integrity is the same.” (Vol II, Page 7)