On June 23, 1972, President Richard M. Nixon had a conversation with his chief of staff, H.R. Haldeman, about the growing investigation into members of his reelection committee who had broken into Democratic National Committee headquarters in the Watergate office building in order to steal documents and place surveillance equipment that would grant a massive tactical advantage to Nixon’s reelection campaign. This conversation was recorded and ultimately, after a lawsuit to release this tape reached the Supreme Court, it was ordered that it be provided to Congress.
During the conversation Haldeman suggested a plan concocted by Nixon campaign manager and Attorney General John Mitchell that the CIA director should be asked to contact the FBI and tell it to back off the investigation. Nixon ultimately agreed to this plan and suggested they use the excuse that somehow the break-in at the Watergate was related to the Bay of Pigs invasion and was therefore a classified matter that the FBI should stay away from.
Haldeman: That the way to handle this now is for us to have [Deputy CIA Director Vernon] Walters call [acting FBI Director] Pat Gray and just say, “Stay the hell out of this…this is ah, business here we don’t want you to go any further on it.” That’s not an unusual development,…
Nixon: Um huh.
Haldeman: …and, uh, that would take care of it.
Nixon: What about Pat Gray, ah, you mean he doesn’t want to?
Haldeman: Pat does want to. He doesn’t know how to, and he doesn’t have, he doesn’t have any basis for doing it. Given this, he will then have the basis. He’ll call [FBI Deputy Director] Mark Felt in, and the two of them …and Mark Felt wants to cooperate because…
Nixon: Yeah.
Haldeman: he’s ambitious…
Nixon: Yeah.
Haldeman: Ah, he’ll call him in and say, “We’ve got the signal from across the river to, to put the hold on this.” And that will fit rather well because the FBI agents who are working the case, at this point, feel that’s what it is. This is CIA.
[...]
Nixon: When you get in these people when you…get these people in, say: “Look, the problem is that this will open the whole, the whole Bay of Pigs thing, and the President just feels that” ah, without going into the details… don’t, don’t lie to them to the extent to say there is no involvement, but just say this is sort of a comedy of errors, bizarre, without getting into it, “the President believes that it is going to open the whole Bay of Pigs thing up again. And, ah because these people are plugging for, for keeps and that they should call the FBI in and say that we wish for the country, don’t go any further into this case”, period!
Haldeman: OK.
Nixon: That’s the way to put it, do it straight (Unintelligible)
This plan was attempted but was ultimately unsuccessful.
Later in the day, both Walters and CIA Director Richard Helms visit Haldeman to discuss the situation. Helms says that he has already heard from Gray, who had said, “I think we’ve run right into the middle of a CIA covert operation.” Helms and Walters both agree to pressure Gray to abandon the investigation, but their efforts are ineffective; the assistant US attorney in Washington, Earl Silbert, is driving the investigation, not the FBI.
Nixon’s obstruction failed, and yet the release of this tape was the “smoking gun” that ultimately ended his presidency, as it finally convinced the recalcitrant Republicans to agree to proceed with a vote on impeachment.
Within the articles of impeachment that were filed against President Bill Clinton there was also a charge of obstruction of justice.
Less than a month later, on September 9, Kenneth Starr submitted his report and 18 boxes of supporting documents to the House of Representatives. Released to the public two days later, the Starr Report outlined a case for impeaching Clinton on 11 grounds, including perjury, obstruction of justice, witness-tampering, and abuse of power, and also provided explicit details of the sexual relationship between the president and Ms. Lewinsky.
On October 8, the House authorized a wide-ranging impeachment inquiry, and on December 11 the House Judiciary Committee approved three articles of impeachment. On December 19, after nearly 14 hours of debate, the House approved two articles of impeachment, charging President Clinton with lying under oath to a federal grand jury and obstructing justice. Clinton, the second president in American history to be impeached, vowed to finish his term.
The specific obstruction charge against Clinton was not related to anything he did in his official capacity as president; he was charged with obstruction because he had denied his affair with Monica Lewinsky to his staff and also questioned his personal assistant about Lewinsky in an effort to determine if she was the source of the apparent leak to attorneys for Paula Jones.
Starr’s office argued that even though none of his current staff or his assistant were on the witness list for the Jones case, Clinton could be charged with perjury, witness tampering, and obstruction despite the fact that the Lewinsky matter was not likely to be a material issue to the Jones case, and as such, none of the people he had talked to would likely become witnesses in that case. In short, there was no current judicial procedure and “underlying crime” to obstruct.
Still, at the time Republicans such as Lindsey Graham—who as a member of the House Judiciary Committee at the time was one of the House managers who presented the case against Clinton to the Senate—were fairly gung-ho for impeaching Clinton over obstruction claims that even they didn't think could be prosecuted.
Lindsey Graham (R-SC), who has become one of Trump’s closest congressional allies, similarly seems to have lost his passion for restoring the dignity of the White House.
“You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determinates that your conduct as a public official is clearly out of bounds in your role,” said Graham in 1998. “Because impeachment is not about punishment. Impeachment is about cleansing the office.” [Emphasis added.]
He later stated: “I’m telling you momentum is shifting toward impeachment, because people are looking at facts and coming to realise the President committed serious crimes and it is not just about sex. The idea that this is an accusatory function here. We are not the trial, the trial is in the Senate. Our job is to find credible evidence if there is warning impeachment from that evidence; grand jury perjury, obstruction of justice by the President, I think are high crimes and misdemeanours. The only thing to change my mind would be direct, honest candour on his part. The President has to earn censure.”
Similarly, Mitch McConnell also felt strongly that Clinton should be impeached.
In a speech at the impeachment hearings, McConnell said he wanted to draw attention to a “serious and deeply troubling crisis” in the country. “This is a crisis of confidence, of credibility, and of integrity. Our nation is indeed at a crossroads: Will we pursue the search for truth, or will we dodge, weave and evade the truth.”
During the special counsel investigation conducted by Patrick Fitzgerald into the issue of the release of covert CIA operative Valerie Plame-Wilson’s identity by the late Robert Novak in 2003, Fitzgerald ultimately ended his case by filing obstruction of justice charges against Vice President Cheney’s chief of staff “Scooter” Libby, who had claimed that he had discovered Plame’s status with the CIA from the late NBC correspondent Tim Russert, when in fact he was told about Plame by Dick Cheney.
Libby, 55, was charged with two counts of perjury, two counts of making false statements and one count of obstruction of justice. (Read the indictment.)
The charges, announced at 12:45 p.m. ET, allege that Libby lied to FBI agents who interviewed him in 2003, that he committed perjury while testifying under oath in front of the grand jury in March 2004 and engaged in obstruction of justice by impeding the grand jury’s investigation into the leak of Valerie Plame’s affiliation with the CIA.
“When citizens testify before grand juries they are required to tell the truth,” special prosecutor Patrick Fitzgerald said Friday in a statement. “The indictment returned today alleges that the effort of the grand jury to investigate a leak were obstructed when Mr. Libby lied about how and when he learned and subsequently disclosed classified information about (CIA officer) Valerie Wilson.”
Fitzgerald did not fully resolve the Plame case, and he blamed Libby—who basically dived on the grenade to protect Cheney—for that failure.
Though outing a CIA agent can be illegal, no one was charged with doing that to Plame. Instead, Fitzgerald went after Libby for lying. Though seemingly a side issue, Fitzgerald told reporters it was like "throwing sand in the umpire's face," a serious transgression that stops investigators from doing their jobs. Today, Fitzgerald came back to that theme, stressing that to "have a high-level official do that under oath in a national security investigation is something that's not acceptable."
Now, as of last week we have the Mueller report on Trump. How exactly does that stack up to the obstruction cases against Nixon, Clinton, and Libby?
The Mueller report confirms that Russia’s military foreign intelligence agency, the GRU, hacked the DNC, the DCCC, John Podesta, and several state election systems, including those in Illinois and Florida; shared the hacked emails and documents it obtained with Wikileaks; then set up massive social media campaign bots and trolls to influence U.S. voters against Hillary Clinton and toward Trump.
As set forth in detail in this report, the Special Counsel's investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
The reports states that Trump had tried to echo the efforts of the Russians by asking Michael Flynn to try to get copies of Clinton’s deleted emails. He did so by reaching out to Barbara Ledeen, whose husband Michael Ladeen has long been suspected of being the source of the forged yellowcake document that was the source for George W. Bush’s infamously false 16 words during his 2003 State of the Union. Barbara Ledeen had searched for copies of Clinton’s emails on the dark web under the presumption that Clinton’s server had been hacked just like the DNC had—even though the GRU didn't start its hacking operations until months after her emails had already been deleted and her server was in the custody of the FBI. In addition, Flynn reached out to Robert W. Smith, who hired a set of hackers to try to find the emails. Both came up empty-handed, although Ledeen did find some emails that turned out to be fakes.
Mueller did not note any “collusion” (because that’s not a criminal standard), but he did note a voluminous list of lies about Trump campaign contacts with Russians and attempts to delete and destroy communications. This appeared to be a widespread attempt to hide the truth about attempts to take advantage of Russian influence, but technically no one in the Trump campaign ever fully made an explicit agreement with the Russian government.
Not for lack of trying, though.
Former campaign members such as Roger Stone did make direct contact with the GRU—via Twitter messages with both DCLeaks & Guccifer 2.0—and also had contact with people such as World Net Daily’s Jerome Corsi and Ted Malloch, a Hillary-hating Democrat living in London with ties to reporters working for Russian television network RT, who were able to provide a two-way conduit to WikLeaks, which in turn had been provided hacked and stolen documents by the GRU.
As a “former” member of the Trump campaign, Stone and his efforts with Guccifer 2.0 and WikiLeaks were not considered by Mueller to be actions conducted “by the campaign,” even though it appears that he was instructed to begin this effort by a “campaign official” and he ultimately reported his results back to the campaign in series of emails that he sent to Steve Bannon.
Newly revealed messages show how the political operative Roger J. Stone Jr. sold himself to Trump campaign advisers as a potential conduit to WikiLeaks, which published thousands of emails in 2016 damaging to Hillary Clinton’s campaign.
[...]
Mr. Stone had apparently been trying to get in touch with Mr. Bannon to tell him about Mr. Assange’s plans. Mr. Boyle, a protégé of Mr. Bannon’s, forwarded to him Mr. Stone’s email. But Mr. Bannon appeared uninterested in engaging.
Stone also used his connections through Corsi to prompt Assange to release the Podesta emails on the same day that the Access Hollywood tape story broke in the Washington Post.
According to Corsi’s account, Stone frantically called him in the hours before the now-infamous video dropped, demanding that he push Wikileaks into publishing the Podesta emails as a way of diverting attention from the impending story.
Stone’s indictment records an associate of Trump campaign chair Stephen K. Bannon texting Stone “well done” after the release, and states that Stone went on to claim credit for the leak in the days after Wikileaks began the dump.
If Corsi’s account is true, Stone would have known before nearly anyone the Access Hollywood tape was about to be made public. That raises fascinating questions about how Stone would have learned that the tape was coming. It also raises separate questions of whether – and how – he managed to contact Wikileaks, and why at least one Trumpworld figure in the indictment appeared to attribute the document release to Stone.
[...]
“I recall Roger telling me that the Billy Bush tape was going to be that day and Roger was saying to me, ‘if you have any way to get Assange to start dropping, tell him to start dumping,'” Corsi said.
[...]
Before the tape was published and Wikileaks started dumping, Corsi spoke with London-based conservative writer Ted Malloch on a conference call. Corsi, a 72-year old conspiracy theorist, told TPM that other “granular” details had since slipped his mind.
Much of this section of the report related to Stone, Corsi, and Malloch is redacted, but Stone’s indictment tells the full tale.
Mueller did not find sufficient evidence to prove the Trump campaign was an active part of Russia’s two conspiracies to hack and disseminate data and to influence the campaign, but that doesn’t mean there was “no evidence” of such coordination and conspiracy. There was in fact plenty of evidence.
The point of fact is that most of the Trumpsters may have failed to collude directly with Russia—Don Jr. didn’t get any dirt from Veselnitskaya, Michael Cohen didn’t complete the Moscow Tower deal, Papadopoulos didn’t find out more about the emails after Sessions asked him to, Barbara Ledeen and Paul Smith didn't find copies of Hillary’s deleted emails—but as I’ve written before, Roger Stone didn’t fail. He successfully communicated with DCLeaks and Guccifer 2.0, both of which were confirmed by Mueller as being part of the GRU; he directly received some of the hacked documents from the DCCC and gave Guccifer 2.0 his review and opinion on them; and through his intermediaries, he established a two-way link with WikiLeaks, through which he received early information about the Podesta emails, which he passed on to Steve Bannon at the Trump campaign; and he also told WikiLeaks precisely when it should start releasing that information to have the greatest effect, which was just an hour after the Access Hollywood story was published, after he had apparently been warned about the upcoming report by someone inside Trump’s campaign.
Although Mueller declined to prosecute for conspiracy or coordination, he does write that the Trump campaign was "deeply co-opted” by the Russian effort and that members of the campaign repeatedly looked for aid from the Russians or were unwittingly in contact with GRU spies and assets. However, Mueller also says, “At other times, campaign officials knew who they were dealing with and were receptive to the offer of assistance.”
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities. (pg. 13)
Multiple members of the Trump campaign and administration lied about their contacts and interactions with various Russians:
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. (pg. 17) [Emphasis added.]
Mueller didn't find that they were part of the same conspiracy as the Russians, but they did find that the Trump campaign and the Russians had the exact same goals, as noted by TPM.
In the heady days of late July 2016, Donald Trump was ready for Russian help.
That much is clear from the Mueller report, which recounts how Trump repeatedly told Michael Flynn to find Hillary Clinton’s deleted emails after publicly asking Russia to “find” them.
That episode fits a broader pattern. Throughout the 2016 campaign, Trump underlings and hangers-on — both in Russia and the United States — tried to leverage Trump’s chaotic presidential campaign for their mutual advantage.
As Mueller characterized it, the Trump campaign saw a “benefit” in the Russian interference operation, and the Russian government saw its own “benefit” in a Trump victory. But potential cooperation between the two sides did not meet the standard of a criminal conspiracy that would necessarily survive a trial by jury.
As Cody Fenwick writes, these lies and destruction of evidence, the firing of Comey, the attempted firings of Mueller through Don McGahn and also Corey Lewandowski were all part of conspiracy by the campaign and Trump to hide their many attempts to take advantage of Russia’s crimes. Those attempts may have mostly failed, but the point is the attempts, not whether or not they succeeded.
Attempting to obstruct justice, such as giving orders to quash the special counsel probe as Trump did, is just as much a crime as actually obstructing justice. Your aids refusing to carry out your corrupt orders doesn’t make you less corrupt.
Perhaps even more importantly, though, we have no idea how successful Trump was at obstructing justice.
Consider an extremely important caveat in the summary of the first volume of the report, which focuses on the Russian election interference, the Trump campaign’s links to Russia, and potential conspiracy. Mueller could not establish that a conspiracy occurred; however, he noted that
Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above.…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.
And he explained that
while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, 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.
In other words, while Mueller didn’t demonstrate that a conspiracy occurred, he leaves open the possibility that it did. And [the] cover-up may be the reason he didn’t find it. [Emphasis added.]
Mueller’s report specifically suggests that the obstruction not just by Trump but by many of his aides who lied and had destroyed information and evidence may. have. worked. One specific example of this type of destruction, which Mueller was unable to confirm, was whether George Papadopoulos was ever able to inform the Trump campaign what he was told by Joseph Mifsud, that the Russians had “thousands of Hillary Clinton’s emails.”
Spring 2016. Campaign foreign policy advisor George Papadopoulos made early contact with Joseph Mifsud, a London-based professor who had connections to Russia and traveled toMoscow in April 2016. Immediately upon his return to London from that trip, Mifsud told Papadopoulos that the Russian government had "dirt" on Hillary Clinton in the form of thousands of emails. One week later, in the first week of May 2016, Papadopoulos suggested to are presentative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to candidate Clinton. Throughout that period of time and for several months thereafter, Papadopoulos worked with Mifsud and two Russian nationals to arrange a meeting between the Campaign and the Russian government. No meeting took place.
[,...]
Third, 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.
[...]
George Papadopoulos, a foreign policy advisor during the campaign period, pleaded guilty to lying to investigators about, inter alia, the nature and timing of his interactions with Joseph Mifsud, the professor who told Papadopoulos that the Russians had dirt on candidate Clinton .in the form of thousands of emails.
[...]
Papadopoulos shared information about Russian "dirt" with people outside of theCampaign, and the Office investigated whether he also provided it to a Campaign official. Papadopoulos and the Campaign officials with whom he interacted told the Office that they did· not recall that Papadopoulos passed them the information.
Even though Mueller was unable to confirm that Papadopoulos passed this information on to members of the Trump campaign, there was one member of the campaign at that time, John Mashburn, who testified to Congress that he recalled seeing an email from Papadopoulos about “Hillary’s emails.”
The White House official had a startling assertion: He thought he had received an email in the first half of 2016 alerting the Trump campaign that Russia had damaging information about Hillary Clinton.
Testifying behind closed doors on Capitol Hill in late March, the official, John K. Mashburn, said he remembered the email coming from George Papadopoulos, a foreign policy adviser to the campaign who was approached by a Russian agent, sometime before the party conventions — and well before WikiLeaks began publishing messages stolen in hackings from Democrats.
Such an email could have proved explosive, providing evidence that at least one high-ranking Trump campaign official was alerted to Russia’s meddling, raising questions about which advisers knew and undercutting President Trump’s denials of collusion.
If Mashburn is correct, then it’s possible that as much as two months before the first email dump by DCLeaks, the Trump campaign was aware that there were thousands of emails related to Clinton that were being held by the Russians, so actions such as Don Jr.’s saying, “If it’s what you say I love it” when he was offered inside information on Hillary Clinton by a Russian lawyer begin to make much more sense. On the other hand, the email he described was never located, so either he could have been mistaken or copies of that email were thoroughly scrubbed by the campaign to cover its tracks.
This again, would be obstruction of justice—but it would also be untraceable and would have prevented Mueller from directly linking major players within the campaign to the Russian hacking effort; their being aware of it this early and failing to report it to the FBI would have made them essentially accessories to that original crime.
It would be like kicking sand into the eyes of the umpire.
Beyond this, Mueller noted that there were nearly a dozen specific acts of obstruction attempted that were frequently blocked by Trump’s own staffers, who simply didn't implement his requests.
The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. (pg. 370)
Mueller found that the following staffers essentially ignored Trump's directives to obstruct justice—not exactly every time—with over 10 instances of attempted obstruction.
-
The report supports Comey's assertion that Trump requested his “loyalty” and to “let Flynn go.”
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Trump instructed KT McFarland to draft a memo claiming he didn't tell Flynn to discuss sanctions with Kislyak. McFarland didn’t write the memo because she didn’t know if it would have been true.
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Trump was angry over Sessions’ recusal, and reached out to intelligence agencies, including DNI Dan Coats, to try to get them to dispel the notion that Russian meddling and his campaign were linked and also to talk to Comey about the investigation (which would have been inappropriate). They didn’t do it.
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Trump’s “I’m fucked” reaction to the appointment of Mueller and his request to Don McGahn to have Sessions “get rid of him” are confirmed, as well as McGahn’s threat to quit in protest because he was being asked to do “crazy shit.”
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He tried to get Sessions to state that the Mueller probe was unfair and to limit the scope of the probe by giving a note to Cory Lewandowski to give to Rick Dearborn for Sessions, but Dearborn didn't feel comfortable with it, so he didn't do it.
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He tried to block release of emails related to the June 6th Veselnitskaya meeting and to limit any links between the meeting and the campaign. Hope Hicks thought Don Jr.’s emails “looked really bad,” so Trump told her to cover them up so they wouldn't get to the press. Junior ultimately released the emails on Twitter.
-
Trump tried to pressure McGahn into denying that he'd been asked to have Sessions fire Mueller, and that he had threatened to quit over it, but McGahn refused to lie about it.
-
McGahn did, however, talk to Assistant Deputy Attorney General Dana Boente, who was in charge of the Russia investigation before Rod Rosenstein was confirmed as deputy attorney general, and attempted to get him to "shorten the investigation" and reveal that "Trump wasn't under investigation" even before FBI Director James Comey had been authorized to state that there even was an investigation of Flynn, Manafort, Papadopoulos, and Page. Boente refused both requests.
-
Trump’s attorneys notified Flynn that Trump was very fond of him and asked that he give a “heads-up” on anything that could damage Trump—or about how much Trump fawned over Paul Manafort when it became obvious that he wouldn’t flip.
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Chris Christie refused to deliver a “friendly” letter from Trump to Comey after Mueller was appointed—because it would have made things awkward for Comey.
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Jeff Sessions refused Trump's requests to unrecuse himself.
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Rod Rosenstein was asked, after writing the negative recommendation on Comey, to do a press conference and take sole credit for the decision to fire him. He refused.
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Reince Priebus slow-walked a letter requesting Session’ resignation during the summer of 2017—just a couple months into the Mueller probe—and ultimately Trump forgot about it.
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Rob Porter was asked by Trump to get in touch with Rosenstein's deputy, Rachel Brand, to see if she would be interested in taking over the Mueller probe, which would happen only if Rosenstein quit or was fired while Sessions was recused. Porter didn't do it. Brand eventually quit.
Just about all of that fits this definition.
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any
person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a
record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that
person to appear as a witness, or to produce a
record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such
person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a
law enforcement officer or judge of the
United States of information relating to the commission or possible commission of a Federal
offense or a violation of conditions of probation
[1] supervised release,,
[1] parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.
Despite the claims of Attorney General Barr, Mueller did not “punt" on obstruction due to “insufficient evidence,” executive powers, or mitigating factors.
If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and applicable legal standards, we are unable to reach that judgment. (pg. 182)
Mueller specifically said that he could not move forward on obstruction because of existing DOJ rules that prohibit indicting a sitting president.
The Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to preform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’ Given the role of the Special Counsel…this office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. (pg. 213)
Which means Impeachment and/or censure is the path forward, and also that AG Barr lied about Mueller’s findings, possibly even under oath before Congress, although he did try to avoid describing the details of the report. Alex Henderson has pointed out just how AG Barr's four-page letter vastly distorted Mueller’s report. In his letter in March, Barr wrote that Mueller
“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.”
But Mueller’s report, Savage notes, also said that “the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events—such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians, could be seen as criminal activity by the president, his campaign or his family.” [Emphasis added.]
Further, Mueller specifically stated that the matter of obstruction should be addressed by Congress:
The Department of Justice and the President's personal counsel have recognized that the President is subject to statutes that prohibit obstruction of justice by bribing a witness or suborning perjury because that conduct does not implicate his constitutional authority. With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice. (pg. 8) [Emphasis added.]
Phil Bump at the Washington Post points out that despite Trump’s claim that Russia didn’t “change the vote," the Mueller report indicates the opposite:
“It may be — and appears to be — true that Russia didn’t manipulate actual voting results,” says Bump, “but Russia’s efforts absolutely affected the vote, as they were intended to — and as Trump and his campaign hoped they would. [...] The campaign knew that WikiLeaks was releasing material damaging to Clinton, prompting Trump to praise the organization frequently that October,” they believed it would help their campaign.” And public polling at the time showed 37 percent of voters would be less likely to vote for Clinton due to WikiLeaks. [Emphasis added.]
If that poll was about evenly split between likely Democrats and Republicans, it means that Clinton was facing a negative 18% headwind among Democrats who probably didn't vote out of loyalty to Sanders or else went for Jill Stein—and that difference is exactly how she lost 70,000 combined votes in Michigan, Pennsylvania, and Wisconsin.
All of this leaves us with the question: What now?
There are some Republicans who reacted very negatively to Trump in the wake of Mueller’s report.
So that’s something.
In contrast, other Republicans seem to think that Democrats are going to run charging toward impeachment, much as they themselves did 20 years ago. Lindsey Graham—remember him?—has predicted House Democrats will “stampede to impeach Trump,” and as a result, Twitter slammed him as a “gutless sycophant” for parroting Trump’s “No Collusion, No Obstruction” propaganda. Sen. Joni Ernst shrugged off Trump's list of crimes and blamed them on his “brash demeanor.”
Then the internet erupted when former House Speaker Newt Gingrich called Democrats “Impeachment crazy,” saying, “He would know!”
But the actual sentiments on the Democratic side are decidedly mixed.
Obama's former acting Solicitor General Neal Katyal said, “If you don’t Impeach, I don't get what this is for.”
Democratic leaders discussed impeachment on a conference call, many arguing that they should continue to investigate things before jumping headlong into impeachment, particularly since it’s unlikely to be successful in the Senate. Some counseled caution, but others, such as Rep. Val Demmings of Florida, argued, “We have enough evidence NOW!” House Intelligence Committee Chairman Adam Schiff was not convinced that the House should go for impeachment, even though he said that what Trump did is worse than what Nixon did. (Yes, it is, actually.) House Judiciary Committee Chairman Jerrold Nadler said that “if proven, some of this would be impeachable.” (Well, with enthusiasm like that, who could deny it?)
CNN hosted town halls last week with Pete Buttigieg, Amy Klobuchar, Elizabeth Warren, Bernie Sanders, and Kamala Harris, at which they disagreed on whether Congress should start an investigation based on the Mueller report or start impeachment hearings. Warren said, “There is no political inconvenience exception to the U.S. Constitution, and if anyone else had done what is described in the Mueller report, they would be arrested and sent to jail.” Sanders said, “If we attempt to impeach, the next two years will be Trump, Trump, Trump, Mueller, Mueller, Mueller, and not any talk about what's best for the American people.”
After the Democratic leaders’ conference call, House Speaker Nancy Pelosi issued a statement that impeachment won't be pursued now, but investigations will, and “We can investigate without impeachment hearings.” But she also says, “if the investigations lead us to impeachment, that's where we have to go.”
For his part, Trump has said he's not worried about impeachment, “Not even a little bit.” He also said that “No one disobeys him,” to which CNN’s John King responded, ”Since hour one of this administration we have had aides telling us ‘pay no attention to what the president says, watch what we do. He says and tweets a lot of things, and we massage them or ignore them.’ I guess I understand it as a test of his macho, but it’s just not true that nobody disobeys his orders.” (I know, right?)
It’s quite obvious that the Democratic-led House could in fact impeach Trump, but that even with a mountain of obstruction evidence that is several times higher and more dangerous to our republic than what was available against Nixon, Clinton, or Libby, the Senate is absolutely unlikely to dredge up the 67 votes required to convict and remove Trump following an impeachment in the House. We all know that that is simply not going to happen.
To some extent, Trump may be betting and hoping that Democrats will attempt to gain the Pyrrhic victory of impeachment anyway, despite the unlikelihood of ultimate conviction. He may be betting that this will be a massive “overreach” by Democrats, which he can campaign against and use to gain sympathy from his desperately aggrieved base.
In this vein, it may be the smart play by Pelosi and Nadler not to rush immediately into formal impeachment hearings, but rather to continue a public investigation in which the case can slowly be made that Trump’s actions are totally anathema to the continued functioning of our constitutional republic. Elizabeth Warren is completely correct in saying, “There is no political inconvenience exception to the U.S. Constitution and if anyone else had done what is described in the Mueller report they would be arrested and sent to jail.”
Warren is correct, but then so is Pelosi. A slow and deliberate presentation of the facts just might be able to turn the tide of public opinion against Trump and possibly allow the GOP to slip out from under the vise-like grip of his rabid base.
Yeah, okay, I don’t really think that’s gonna happen either—but it is the best starting point we have at this time.
A second reason not to try to attempt to impeach Trump now is the fact that his removal would make Mike Pence the sitting president, and just like Gerald Ford decades ago, he would be quite likely to pardon Trump and his indicted and convicted cronies as a way to have the nation “move forward” from this point.
That. can’t. be. allowed. to. happen.
Don’t get me wrong: I absolutely want Trump to be impeached and removed from office as soon as humanly possible, but the fact is that an impeachment resolution now simply won’t do the job, and it will likely result in Trump walking away without being held truly accountable for anything.
If we want to make a statement of disapproval that also won't remove Trump—which impeachment probably won't—Congress can issue a motion of censure.
In the United States, governmental censure is done when a body's members wish to publicly reprimand the President of the United States, a member of Congress, a judge or a cabinet member. It is a formal statement of disapproval. ... There are also no legal consequences that come with a reprimand or censure.
Censure has three advantages over impeachment: It won't be seen as a failure if it doesn't lead to removal in the Senate—as we saw with Andrew Jackson and Bill Clinton. It won't lead to a potential pardon. And lastly, only Andrew Jackson has been censured before, so that's a fairly unique stain on Trump that can never be erased. Plus there's even a small chance—with the support of Romney, Portman, and others, and enough public outrage—that a censure resolution could pass in the Senate with just 51 votes, and, if structured properly, could also act as a basis for a set of formal criminal referrals against Trump and members of his administration who have violated the public trust and their constitutional duty.
I know that a bipartisan two-chamber censure resolution would still need to cross the artificial 60-vote cloture threshold in the Senate, but that is far more achievable than the 67 votes needed to remove him from office. Both are difficult, and censure is unlikely, but impeachment is right now literally not possible. Let’s work for the possible, even if it's difficult.
Trump himself has now begun to openly stonewall congressional investigations, forbidding even former members of his staff from testifying and asking them to refuse to honor valid subpoenas from Congress, even when they’ve already waived attorney-client and executive privilege, arguing that “Democrats are only doing this for 2020.” Frankly, he’s right. We do need to do this for 2020, and for 2024 and for 2028. We need to absolutely make sure that Trump is defeated in the next election so that the Department of Justice rules preventing his being indicted and prosecuted are lifted as soon as possible, particularly before the five-year statute of limitations on obstruction runs out in 2021. His stalling tactics will not deter Congress; Democratic members are only likely to strengthen their resolve and drag this process out past the end of the year, right into the middle of the next election. And what Bernie Sanders said about that is also true: “If we attempt to Impeach the next two years will be Trump, Trump, Trump, Mueller, Mueller, Mueller, and not any talk about what's best for the American people.”
These investigations can’t just be about Trump himself. Democrats, and Republicans where possible, need to publicly document, chapter and verse, each and every little bit of the Trump administration's mendacity and corruption, his obstruction in the Russia case, his violation of asylum laws, illegal threats to use the government against his political rivals, his tax and financial violations, his selling out our environment and public lands to business lobbyists and his shoveling of hundreds of millions of dollars from our schools and education system to incompetent for-profit charter schools. We have to make the case that his one supposed saving grace, his so-called economic miracle, is nothing more than a mirage, fool's gold, as the average American continues to fall further and further behind in the wage and wealth gap, as public services are dismantled and the deficit skyrockets to over a trillion dollars per year due to Trump's tax cuts for the people who need a tax cut the least. And while doing that, we need to hang all this corruption not just around his neck, but have hung around the necks of every one of his sycophantic enablers in the GOP, from Jim Jordan to Devin Nunes, Louis Gohmert, Matt Gaetz, Mark Meadows, Kevin McCarthy, Steve Scalise, Joni Ernst, Chuck Grassley, Mitch McConnell, and Lindsey Graham. It's not enough to take Trump apart piece by piece; we have to take down every part of the GOP that ever dared to openly and publicly excuse, cover up, rationalize, and justify his lies and crimes. We need to make it a point that it's the fault of the GOP that Trump isn't going to be impeached, nothing that should be fixed will be fixed, and its failure is literally putting our entire nation—if not the world—at critical risk.
Yes, this censure motion would largely be PR; this would be campaigning, but this is what we need to do: make the case to America in order to make sure these criminals pay the proper price under the law. No half-measures. No quarter. No reprieve. No pardons.
I understand that to rightie ears this probably sounds like, "Lock him up, lock him up" for purely partisan and petty reasons. That isn't the case. Mueller has laid out a strong case for a felony indictment, as has the Southern District of New York against Individual 1. The other 14 current investigations within the DOJ that spun off from the Mueller investigation are likely to bring even more potential indictments once Trump is out of office. Mueller's report isn't the end of anything; it's just barely the beginning, and things are only going to get worse for Trump and his people from here forward.
This can’t be about Trump personally. It has to be about the American presidency, what it has to stand for, and what it has to stand against.
America cannot afford to get this wrong. We can’t afford to make the mistakes we’ve made in the past. After Nixon resigned, Ford pardoned him. He ripped off the Band-Aid in one quick move rather than slowly having a public trial and an ultimate conviction in a court of law. He was trying to be merciful, but he should have let the legal process play out, and Nixon should have been sent to prison, not out of spite or revenge, but in order for a lesson in American justice to be fully learned. In order to send an indelible permanent bright-lined message to every future White House occupant about what the republic will stand for and what it will not.
With that lesson being learned, it wouldn’t have become an enduring Republican myth that Ronald Reagan's “toughness” was greater than Jimmy Carter’s hard-fought negotiations with the Iranians, while Reagan allegedly blocked the earlier release of the U.S. hostages in Iran in 1980 until he was physically sworn into office, in the same way that Nixon had worked behind the scenes to monkey-wrench Johnson’s peace talks with Vietnam in 1968. That wouldn’t have been considered a “sexy and tough” idea,; it would have been considered what it was: a treasonous violation of the Logan Act.
Reagan wouldn’t have denied that he had given the orders for his ridiculous end run around Congress and the laws blocking U.S. intelligence agencies and the DOD from being involved in Central American civil wars, by turning the White House National Security Council into an ad hoc back-door intelligence agency that not only sold Tomahawk TOW cruise missiles to Iran in order to get hostages released by Hezbollah terrorists in Lebanon—a plan that didn’t work at all and didn't secure the release of a single hostage—but also took the profits from those missile sales to supply weapons for pro-capitalist terrorist death squads in Nicaragua. He was making a profit off of illegally selling weapons to one set of terrorists in order to illegally provide weapons to another set of terrorists. That would have been just plain unthinkable, because it was criminal.
And then George H. W. Bush would have known better than to repeat Ford’s mistake and pardon every White House, State Department, and CIA official convicted or on trial in that scandal, such as Caspar Weinberger, who was about to go on trial for perjury and obstruction of justice, and Robert McFarlane and Elliott Abrams, who were both convicted of withholding evidence. That would have been beyond the pale.
The crimes that have been ignored and pardoned continue on through all administrations. If we had done this right, just once, the idea that someone in the White House being held fully and completely accountable under the law for their actions in office wouldn't be a foreign, unknown concept.
Then comes jail. Anything less is too good for them, and not good enough for the nation.