How not to think–and what the Mueller Report won’t tell us–about Trump’s efforts to obstruct the investigation

Back in December, I wrote a post about Bill Barr’s June 2018 memo to DOJ officials. In it, I was sharply critical of Barr’s understanding of the President’s constitutional prerogatives and his relationship to criminal investigations. I did, however, agree with one discrete aspect of Barr’s memo–namely, his view that, as a matter of policy, “it’d be deeply unfortunate and unwise for DOJ to begin a practice of investigating whether a ‘facially legitimate’ exercise of the President’s Article II authorities was in fact motivated by illegitimate—i.e., self-interested—considerations, and whether such unconstitutional considerations were a ‘but for’ cause of the President’s actions”–the questions a prosecutor would ask, in other words, if he or she were considering whether to indict President Trump for “obstruction of justice” with respect to his treatment of FBI Director Jim Comey and similar public acts.

“I’m very sympathetic to that version of [Barr’s] argument,” I wrote, “and, more importantly, I suspect Bob Mueller and Rod Rosenstein are, too!  Which is precisely why I think that, despite breathless press leaks to the contrary (probably emanating from defense counsel), it’s highly unlikely Mueller has in mind to ask the grand jury to decide whether Trump’s motives for his treatment of Comey were ‘corrupt’ or not. That might be a proper subject for congressional consideration in the context of an impeachment proceeding, and for consideration by the electorate at the ballot box.  But I strongly doubt Mueller and Rosenstein (let alone Matthew Whitaker or the incoming AG) would conclude that it’s a question a criminal jury should determine, except perhaps in extreme circumstances.”

I’m not bringing this up now in order to say “I told you so”–because, in truth, I don’t think it reflected any great insight on my part.  Indeed, the point I was trying to stress was that this was a judgment that virtually any supervisory DOJ prosecutor would make.  And today, we see that I was right:  According to Barr’s letter, Mueller “ultimately determined not to make a traditional prosecutorial judgment” about whether Trump violated criminal obstruction statutes.

I’ll make another, related prediction now:  When we see the whole Mueller report to Barr–or at least those parts of it that aren’t redacted–we won’t learn much that’s very new or revelatory about Trump’s efforts to obstruct the Russia probe. To be sure, the report might describe some efforts by Trump to interfere that we don’t yet know.  As Barr made a point of noting today, however, most of Trump’s actions relevant to the question of obstruction “have been the subject of public reporting” and many of them “took place in public view.”

That’s why you’re already familiar with many of those acts: Trump pressured Comey to back off on Michael Flynn.  He fired Comey in order to take off the “great pressure” he faced “because of Russia” (as he said in his contemporaneous boasts to Russian officials!). He constantly disparaged, and called into question the impartiality of, Mueller and his team of lawyers. He insulted countless career and Trump-appointed DOJ and FBI officials of extraordinary integrity. He said he wouldn’t have appointed Jeff Sessions if he knew Sessions would recuse himself from the Russia investigation, tried to get Sessions to reverse his decision to recuse, and humiliated Sessions when he wouldn’t budge.  Eventually he fired Sessions and then displaced Rod Rosenstein as Acting Attorney General with a lackey, deviating from centuries of practice.  He persistently referred to the critically important Russia investigation as a “witch hunt.”  And on and on . . . and on.

These things have become so regular, so commonplace, that we’ve come to take them for granted.  Make no mistake, however: They aren’t things any other president would ever even consider doing.  Any other president would–of course–do everything in his power to support, praise and cooperate with his own officials as they were engaged in an investigation of one of the most serious foreign threats to the nation in recent years. And any other president would abide by the decades-long norms prohibiting presidential interference with, and commenting, on, DOJ investigations–especially when DOJ is investigating the president himself and people in his orbit.

Trump’s behavior with respect to the investigation has been deeply deviant, inexcusable, and damaging. Moreover, it has been–quite obviously–part of a concerted, multiyear effort to obstruct, and undermine the legitimacy of, the Russia investigation. No serious person would dispute that.  And most of it has been out there in plain view already–which is why the Mueller report to Barr is unlikely to contain any great surprises or revelations.

In his letter today, Barr writes that he and Rosenstein have concluded there isn’t proof beyond a reasonable doubt that Trump’s conduct met all the elements of an obstruction offense. I’m somewhat dubious of that, but they’ve read the full report and I haven’t. Any confident assessment will have to await public disclosure of all the facts Mueller uncovered.

The important point in this respect, though, is that it doesn’t matter: Even though Trump has manifestly done a great deal to try to obstruct the Russia investigation, and even if a jury, after Trump’s term in office, might possibly find beyond a reasonable doubt that his conduct satisfied all the elements of an obstruction offense, those facts would not mean that Trump should be indicted for obstruction of justice based upon his very public acts as President–a precedent that neither Mueller nor any other DOJ prosecutor would or should be eager to set. And even if there were any prospect of impeachment proceedings (there’s not), whether Trump technically did or didn’t commit a crime of obstruction wouldn’t be relevant to whether he’s committed any “high Crimes or Misdemeanors”–either one thinks the facts establish that finding or they don’t, but the technical statutory question is inapposite. [UPDATE: And therefore–on the flip side–there was no apparent justification for Barr to opine on whether Trump’s conduct met all the elements of an obstruction offense, other than to give Trump a political boost. Given that there’d never be an obstruction prosecution, Barr’s legal assessment doesn’t tell us anything of relevance–the facts are what they are, and Barr thus should have done what Mueller did, i.e., leave it to Congress and the public to assess their significance.]

Nevertheless, the fact that Trump took all of these outrageous steps to undermine this crucial investigation remains of great importance because of what might lie behind his course of conduct.  What we don’t yet know–and what we’re unlikely to learn from the Mueller report to Barr–is why Trump has tried to obstruct and undermine the investigation. Was it merely because he feared the reputational and political harm he would suffer as so many close to him were indicted and their misdeeds exposed? Or did he have something more to hide–and, if so, what?

More broadly, and as as I asked here and in the Washington Post recently, why has Trump fallen so far short in performing his constitutional duties on behalf of the nation when it comes to matters involving Russia?  In addition to his efforts to hamstring the Russia investigation, what explains his sycophancy to Russian President Vladimir Putin in Helsinki and elsewhere, and Trump’s apparent willingness to believe whatever the Russian leader tells him, even when it contradicts the uniform assessments of his own intelligence agencies?  His reluctance to criticize Putin’s regime, even for its assassinations abroad?  That he has “gone to extraordinary lengths to conceal details of his conversations with . . . Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials, . . . preventing even high-ranking officials in his own administration from fully knowing what he has told one of the United States’ main adversaries”?  His repeated efforts to distance himself from U.S. efforts to countermand Russia? His instructions to Michael Cohen to lie to Congress about the Moscow Trump Tower discussions? His manifest disinterest in addressing the continuing threat to our electoral system?  (Franklin Foer: “[H]is apologetics for Putin [have been] a rare source of constancy.”)

Does Trump have financial obligations to Russian interests? Was he — and does he continue to be — motivated by the prospects of a Moscow Trump Tower? Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence?  Or is there a more benign explanation? [UPDATE:  See, for example, Blake Hounshell:  “[C]onsider an alternative theory: He couldn’t be sure what the investigation would dig up, so he used the scorched-earth tactics he learned from his mentor, attack-lawyer Roy Cohn, just in case. Why did the scorpion sting the frog? Because that’s what scorpions do.“]

These are among the questions Mueller presumably has examined as part of the counterintelligence investigation that was his primary charge. And as I wrote in the Post, “[t]he counterintelligence investigation’s answers to these and similar questions — especially its possible assessment of the president’s capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s deeply inappropriate conduct in 2016-2017 violated any particular criminal statutes.”

That’s why it was always a mistake for so many to be focused on whether Trump tried to obstruct the Russia investigation (duh, of course he did–he even boasts about it) and on whether he’d be indicted for doing so (something that was never a realistic possibility). The much more important questions involve his motives and whether they compromise his current, and future, ability to perform his constitutional duties and functions.

Which is why our attention should now turn to Richard Burr, Adam Schiff, and the congressional intelligence committees. What has Mueller told them? What more will the committees discover about Trump’s relationship(s), if any, with Russia or Russian interests? And can the answers to those questions be shared with the rest of Congress and the public, consistent with national security imperatives? Those questions–rather than what Mueller or Barr might have concluded about whether Trump violated obstruction statutes–ought to be where we now turn our attention. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).