Did Trump and His Team Successfully Obstruct Mueller’s Investigation?

Special Counsel Robert Mueller documented efforts by the Trump campaign to impede his investigation into Russia’s attack on our election. He decided that because he was unable to charge a sitting president with a crime, he would not conclude whether any of these efforts amounted to the crime of obstruction of justice. But to what extent did these efforts successfully prevent Mueller from finding the truth?

Far from “clearing” or “exonerating” the Trump campaign for misconduct, Mueller found numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, but insufficient evidence “to charge a broader conspiracy” with Russian efforts to influence the election. Would an investigation free from obstruction have established evidence sufficient for criminal conspiracy charges?

Mueller documented numerous efforts by Trump and his associates that prevented his team from gathering the evidence that it sought. Despite Attorney General William Barr’s characterization of the White House as “fully cooperative with the Special Counsel’s investigation,” the Mueller report paints a different picture. Mueller wrote about numerous instances in which witnesses lied or withheld information, deleted communications and used encrypted messaging applications. Other practical obstacles prevented Mueller from completing his investigation, including some witnesses’ refusal to answer questions on the basis of their Fifth Amendment privilege against self-incrimination, other legal privileges and the inability to obtain evidence located overseas.

In an important but somewhat overlooked passage, the Mueller report states that in light of these “identified gaps,” in the evidence, “the Office 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.” That is, the obstruction may have worked.

Mueller found “substantial evidence” to support multiple counts of obstruction of justice, including 10 episodes involving President Donald Trump interfering with the investigation. For instance, in June 2017, Trump asked White House Counsel Donald McGahn to fire Mueller. When reports of that incident became public, Trump ordered McGahn to falsely deny the report and create a false document for their files. If successful, this conduct would have had the natural tendency to impede the investigation. In another instance, Trump asked his former campaign chairman Corey Lewandowski, a private citizen, to tell then-Attorney General Jeff Sessions to reverse his decision to recuse himself from the Russia investigation and publicly announce that the special counsel’s investigation would focus only on future elections, and not the 2016 election. If successful, this effort would not only have shielded the Trump campaign from scrutiny, but also would have harmed our national security by preventing our government from learning about the details of Russia’s attack on the 2016 election. Of course, both McGahn and Lewandowski avoided carrying out the president’s orders. And while the president’s efforts were not successful, even attempts to obstruct justice are illegal because they interfere with an investigator’s quest to find the truth.

But besides these ham-handed attempts at obstruction, other efforts appeared to successfully impede Mueller from learning the full truth about the conduct of the Russians and members of the Trump campaign.

Trump’s Refusal to Be Interviewed

One important act that prevented Mueller from conducting a fulsome investigation was Trump’s refusal to participate in an interview with Mueller. For more than a year, Trump resisted efforts to schedule an interview, even though Mueller told the president’s counsel that an interview was “vital” to the investigation, and that it was “in the interest of the Presidency and the public for an interview to take place.” In the end, Trump answered written questions instead, limiting responses to conspiracy and not addressing obstruction. In more than 30 instances, Trump responded that he did not recall or remember the information called for by the question.

Mueller found Trump’s written responses “inadequate,” “incomplete” and “imprecise.” In a live interview, an investigator may use documents or other information to refresh memory. An investigator is also able to observe body language, tone and inflection to assess credibility, and can follow up on answers that are incomplete or evasive. Written answers provide no similar opportunity. If Trump had sat for an interview and had been forthcoming and truthful, the outcome of the investigation may have been different. Trump’s refusal to answer questions accounts for some of the gaps in Mueller’s factual findings.

Lies and Incomplete Information

Other acts that prevented Mueller from reaching the full truth were witnesses who lied or provided incomplete information. Mueller wrote: “the investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.” The report cites lies by former National Security Adviser Michael Flynn, former Trump attorney Michael Cohen and former policy adviser George Papadopoulos, all of whom pleaded guilty to lying to federal investigators.

Papadopoulos lied about his interactions with Joseph Mifsud, the professor who told Papadopoulos that the Russians had dirt on Hillary Clinton in the form of thousands of emails.  Lies by Papadopoulos “hindered investigators’ ability to effectively question Mifsud when he was interviewed in the lobby of a Washington, D.C., hotel,” by undermining their ability to challenge inaccurate statements. Lies by Papadopoulos and Mifsud prevented investigators from learning all of the facts about Mifsud’s knowledge of Russia’s purported possession of the Clinton emails.

Mueller also noted that former campaign chairman Paul Manafort “lied to the Office and the grand jury concerning his interactions and communications with Konstantin Kilimnik about Trump Campaign polling data and a peace plan for Ukraine.” According to the Mueller report, the FBI assessed that Kilimnik has “ties to Russian intelligence.” Manafort’s lies about providing polling data prevented Mueller from fully understanding the purpose of delivering the information to Kilimnik. The data included polling results from Michigan, Minnesota, Pennsylvania and Wisconsin. Trump ended up winning upset victories in three of those four states. Manafort lied about sharing the polling data even after he began cooperating, and, in doing so, risked severe legal consequences. The lingering questions about the exchange of polling data and why Manafort refused to explain it leaves unresolved whether there was coordination between Russia and the Trump campaign, and the effect of the polling data on the outcome of the election.

In addition, some witnesses took active steps to conceal their text and email messages. Mueller noted that some individuals who were interviewed “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.” The results of those efforts hampered Mueller and his team, which “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.”

Other Obstacles

In addition to obstructive efforts, in some instances legal obstacles prevented Mueller from learning the full story. He writes,

“The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity.”

A grant of immunity would enable Mueller to compel the witness to testify because his answers could not be used against him, but could be used against others. Typically, immunity is offered only to witnesses whose own culpability is less than the individuals against whom they are testifying. Mueller appears to have concluded that the witnesses who invoked the privilege were themselves too culpable to offer them immunity. Often, such witnesses are themselves charged with crimes. It may be that some of these individuals were included in the redacted list of 12 ongoing investigations that Mueller referred to other Justice Department components and U.S. Attorney’s Offices, as noted in Appendix D of his report.

A fair inference from reading the report is that Donald Trump, Jr., likely invoked his Fifth Amendment right against self-incrimination to refuse to testify before the grand jury. The report notes that Trump, Jr., declined to be voluntarily interviewed by the office, and then includes redactions attributed to grand jury information. (Vol. I, p. 117). The report further makes reference to Trump, Jr., and the infamous June 9, 2016, Trump Tower meeting, and includes additional redactions attributable to grand jury information (Vol. II, p. 105).

A witness may invoke his Fifth Amendment privilege only if he believes that his answers will incriminate himself. It may not be used solely to protect others. While Trump, Jr., to date has not been charged with a crime, he may have had valid concerns during the investigation that answering the questions would incriminate himself. Mueller did not grant Trump, Jr., immunity, placing him in that category as someone whose own culpability made him a poor candidate for immunity. Trump, Jr.’s refusal to answer questions prevented Mueller from fully exploring the facts about the Trump Tower meeting. While any witness has a constitutional right to invoke his Fifth Amendment privilege, Mueller states that the privilege contributed to his inability to conduct a complete investigation.

In addition to Fifth Amendment privilege, Mueller faced other legal obstacles, writing that some of the information obtained via legal process (such as court orders and search warrants) “was presumptively covered by legal privilege and was screened from investigators,” likely by attorney-client privilege. Mueller also noted that his team faced “practical limits on its ability to access relevant evidence as well — numerous witnesses and subjects lived abroad, and documents were held outside the United States.” It’s clear there were numerous roadblocks that prevented Mueller from seeing the whole picture.

Conclusion

As a result of obstructive efforts and other practical obstacles, Mueller’s team was unable to complete many of their intended investigative steps. The failure to find enough evidence to support a conclusion that crimes were committed in the run up to the 2016 election, then, should not be viewed as a finding that the Trump campaign was “cleared” or that Mueller “found no collusion.” This is not to say that had Mueller been able to take every investigatory step he sought, he would have found enough evidence to charge a conspiracy between the Trump campaign and Russia. We don’t know what the additional evidence would have shown. There is even the possibility that the additional evidence would have painted a more innocent picture of Trump and his associates.

What we do know is that steps were taken to keep the full truth from the investigators. Mueller found “numerous links” between Russia and the Trump campaign that are deeply troubling, but the evidence was insufficient to establish a violation of the conspiracy statute. Deliberate efforts by Trump and his associates contributed to that result. 

About the Author(s)

Barbara McQuade

Professor from Practice at the University of Michigan Law School, Former United States Attorney for the Eastern District of Michigan (2010-2017), Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee in the Obama Administration Follow her on Twitter (@BarbMcQuade).