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The Mueller Report: Trump Too Inept to Obstruct Justice

Drawing by Nathaniel St. Clair

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.

 

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David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

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