April 29, 2019 – Now that `Special Counsel Robert Mueller produced the long-awaited 22-month report detailing his investigation into whether there was Russian Interference in the 2016 Presidential Election—the answer is a resounding YES. The Russians did hack the Democratic National Convention (DNC) servers to “help” their favored candidate win the election—Donald J. Trump–despite Mr. Trump’s pronouncements that Vladimir Putin said “very strongly” that it wasn’t Russia, and “I don’t see why it would be“.…Nevertheless, the 448-page Mueller Report said it WAS the Russians who hacked US-based DNC servers–but Mueller didn’t find a conspiracy “collusion” by the Trump campaign and administration–even though by outward appearances it looks like they may have tried.
The “Mueller Report” was formulated in accordance with United States Code of Federal Regulations covering reports by “Special” Counsels, under 28 C.F.R. § 600.8(c) outlined a series of events by Trump administration and campaign actors—it also outlined a series of uncoordinated bungling by many of them–including Cohen, Papadopolous, Kushner & Don Jr.,–much of it greatly aiding the President—shielding him from himself and the likely possibility of impropriety and criminal activity. The report, issued by Special Counsel Robert Mueller on March 22, 2019, provides a graphic portrayal of the inner workings of the Trump campaign and the White House administration—much of which is befuddling at best. The report is in a “redacted” form with “sensitive” information blacked-out. It was this form of the “Report” that was released to both Congress as well as the American people. The Democratically controlled House of Representatives is now fighting to obtain the “unredacted” form of the report to clarify a number of remaining questions and concerns, and to do so they must subpoena some witnesses who gave testimony to Mueller.
So what does the Mueller Report really say?
It appears to say that there were many attempts—some successful by Russian nationals to meet with key players in the Trump campaign and later the administration—and the June 9, 2016 meeting in Trump Tower was no exception. But did that meeting rise to the level of coordinating with the Russians?
Mueller didn’t think so based upon the requirements, that both and “intent” and the “willful and knowing” standard must be present in the minds of the actors when engaging in criminal conduct. Therefore, it seems that many of the Trump tower actors, Trump Jr., and Kushner, were protected by their own ignorance–and the law which requires criminal intent to commit a crime–a standard that is “willful and knowing.” And of course that is hard to do when lacking any moral compass as to what may be criminal activity and what is not. Yet, this is certainly the case Mueller depicts with regard to the June 9. Trump Tower meeting with Russian operatives offering stolen Hillary Clinton emails–whereby the Trump “team” didn’t know what to expect from the “meeting” other than hoping to get some dirt on Hillary Clinton. In all, the meeting appears to not have proven very productive–with nothing of “value” changing hands. Because of this, Kushner is said to text his secretary while in the meeting—prompting her to call him, giving him “cover” to leave the meeting early.
Nevertheless, Mueller’s findings is that “the active measures investigation” has resulted in criminal charges against 13 individual Russian nationals and three Russian entities, principally for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Yet, what is more telling about the “motives” of the June 9, 2016 meeting, is the attempted cover-ups by other Trump actors, according to the Mueller report.
Additionally, the Special Counsel believed that because many “documents” that could have potentially pointed toward “culpability” by the administration, had been destroyed in the course of regular encryption and deletion protocols—and perhaps by other means–thereby changing the entire investigative paradigm.
As a result, the Special Counsel deferred prosecutorial judgment to the US Attorney General William Barr recently appointed by President Trump. As we now know, Barr received the Mueller Report on a Friday, March 22, and then issued a four-page “summary” on a Sunday, March 24—hardly enough time to dissect and digest 448-pages and appendices of facts, legal analysis, and legal precedents.
Yet, despite Mueller’s equivocation on a number of factors, Barr’s four-page memo asserts no criminal conduct by the President and no obstruction of justice—totally vindicating the President–but this is not what Mueller said–and is patently untrue. Mueller clearly said the evidence they “obtained” does not exonerate the President. In fact, Mueller stated that his Office did not make the “traditional prosecutorial judgment” on whether Trump had obstructed justice—as Justice Department policy is not to indict a sitting president. But Barr mislead readers implying that this policy had nothing to do with Mueller’s decision not to indict. Mueller clearly said in Volume II of his Report, “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” What this means is Mueller wrote because the investigation was about a “sitting president“–a sitting president is not indictable. Most importantly even though Mueller couldn’t indict a sitting president–he could have cleared him of wrongdoing–but Mueller clearly did not.
What is even more troubling, is the fact that the Special Counsel noted in his report, that his office “learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.” Even more worrisome, is the Special Counsel Office believes they “cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”
It appears to any lawyer reading the “Redacted” Mueller Report that, Special Counsel Mueller believes there were several attempts to engage in criminal activity by the President and his team–fortunately for Mr. Trump, these “incomplete” or “inchoate” crimes were thwarted by staff stepping in to prevent their commission. With this as a backdrop, Would it appear to be by design that those in the administration knowingly and intentionally deleted incriminating documents? Or purposefully encrypted and queued them for automatic deletion–which may have been used as a means to subvert justice? Perhaps this is why Mueller wrote “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
In reading this statement and findings in Mueller’s Report, one can get a sense that the President may have tried to engage in criminal activity—had the “intent” or in legal parlance, the “mens rea” to do criminal acts, and even according to Mueller, may have ordered his associates to carry them out—but those he ordered to complete these acts–did not do so–thereby frustrating the attempted commission of a crime(s). Because of this intervention, the President’s directives appear to fall short of what would have been illegal acts. In essence, the President was saved from himself, by those around him who refused to carry out his orders that would engage “them” in criminal activity. Once such person was Don McGahn—White House Counsel to the President, who was reported to have begun packing up his office after he refused to fire Mueller–which he saw as an “illegal act” of obstructing justice, as was ordered by the President.
So What “Legally” Constitutes “Obstruction of Justice?”
According to the United States Code §§ 1503, 1505, 1512(c)(2), there are three basic elements common to most of the relevant obstruction statutes as outlines by Muller. These statutes include a “three prong” test to determine obstruction:
- An “obstructive act”;
- A “nexus” between the obstructive act and an official proceeding; and
- A “corrupt intent.”
According to the Special Counsel Robert Mueller and his team, an “Obstructive act” under Obstruction of justice law “reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.” Mueller Report, Vol. II, p. 221 (Vol II, original document page 9).
Additionally Mueller and his team cite Federal Circuit court opinions finding that an ”effort to influence” a proceeding can quality as an endeavor to obstruct justice even if the effort was “subtle or circuitous” and “however cleverly or with whatever cloaking of purpose” it was made. Mueller also goes on to cite a 2018 US Supreme Court case, Marinello v. United States, finding the verbs “’obstruct or impede’ are broad” and “can refer to anything that blocks, makes difficult, or hinders. Marinello v. United States, 138 S.Ct. 1101, 1106 ((2018).” Mueller Report, Vol. II, page 221.
Lastly, the Special counsel states that “An Improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority. Quoting a 1987 first circuit Federal case, United States v. Cintolo, which held that “any act by any party—whether lawful or unlawful on its face—may abridge § 1503 if performed with a corrupt motive”. Mueller Report, Vol. II, page 221.
In essence, Mueller opened the door to what appears to be Trump exerting “executive” privilege to “prevent” testimony by former White House Counsel McGahn to Congress. Incidentally, it would be the same testimony that McGahn gave Robert Mueller–that McGahn would give to Congress–and to which Trump effectively “waived” any attempt to claim privilege when McGahn previously testified to Mueller. Most importantly, in Section 1505 of the US Code, “the nexus” can include a connection to a “pending” federal agency proceeding or a congressional inquiry or investigation. Under both statutes, the government must demonstrate “a relationship in time, causation, or logic” between the obstructive act and the proceeding or inquiry to be obstructed–to which Mueller cites precedent in a U.S. Supreme Court case, United States v. Aguilar, 515 US 593, 599 (1995). In essence, Mueller has opened the door wide to a panoply of “prospective” “obstruction of justice” claims–a host of landmines for the President to navigate and trigger–including what some may see as a “corrupt intent”–the necessary third element to an obstruction of justice claim that would be satisfied if and when Trump tries to prevent Don McGahn from testifying before Congress. Aside from potential claims for “Witness Tampering“–this is quite a brilliant move by Mueller: let Barr give the President a false sense of security, and enough rope to hang himself—then sit back and wait!
Copyright 2019, Mary Kay Elloian, MBA, JD, Esq. All Rights Reserved.