A few thoughts from Mueller’s Volume II summary of the obstruction case (he refrained from making) against the president

Here are some of Mueller’s own carefully chosen words, from his executive summary of Volume II — Obstruction of Justice.   I have broken them into smaller paragraphs, and inserted comments, to aid in the mastication and digestion of a few key points.

Overarching factual issues. We did not make a traditional prosecution decision about these facts,

Because, according to Mueller, regulations obliged him to obey the OLC opinion about not indicting a sitting president and fairness prevented charging him when the president would have no opportunity to immediately clear his good name,

but the evidence we obtained supports several general statements about the President’s conduct.

Several features of the conduct we investigated distinguish it from typical obstruction-of-justice cases.

First, the investigation concerned the President, and some of his actions, such as firing the FBI director, involved facially lawful acts within his Article II authority, which raises constitutional issues discussed below.

At the same time, the President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses—all of which is relevant to a potential obstruction-of-justice analysis.

Second, unlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference.

Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.

It was this second point that Bill Barr chose as the center of his supremely lawyerly but plainspoken talking points, his best (and only) grounds for defending Trump against the weight of the evidence in the Mueller Report.   

According to Barr, Mueller “acknowledged” that the President had been “angry and frustrated” about the unfair investigation of an innocent man– and so his “intent” — a key to obstruction and criminal conspiracy as well, cannot, according to Barr,  be proven to be corrupt, or obstructive, beyond a reasonable doubt in a court of law– therefore— since any innocent man would have, arguably, acted the same way the president did:   NOTHING TO SEE HERE.

Third, many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view.

That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws.

If the likely effect of public acts is to influence witnesses or alter their testimony, the harm to the justice system’s integrity is the same.  

Every time details of Trump’s pattern of acts to thwart investigation into himself and his administration emerge, the public groans “we heard that one already!  He tweeted it!”.   FOX thunders “old news!  already litigated!”     Here Mueller reminds America that the many likely obstructive acts detailed in his report are no less obstructive if done by tweet.

Although the series of events we investigated involved discrete acts, the overall pattern of the President’s conduct towards the investigations can shed light on the nature of the President’s acts and the inferences that can be drawn about his intent.

In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President’s motives.

The first phase covered the period from the President’s first interactions with Comey through the President’s firing of Comey. During that time, the President had been repeatedly told he was not personally under investigation.

Mueller writes briefly about the original investigation, based on allegations of collusion between Russia and the Trump campaign, and triggered by the firing of FBI director James Comey when he wouldn’t let the “Flynn thing” go, and then the need to expand it when the president began actively trying to thwart the investigation at every turn. 

This is the crux of Mueller’s unspoken (but carefully laid out) case against Trump– willful and ongoing obstruction of all legal investigations involving him.   Trump’s furious response to the investigations kicked into higher gear once the Special Counsel was appointed to conduct his “witch hunt.”

Soon after the firing of Comey and the appointment of the Special Counsel, however, the President became aware that his own conduct was being investigated in an obstruction-of-justice inquiry.

At that point, the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.

Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

The totality of the evidence looks pretty bad here, if you add it all up, and points to an unwavering and corrupt intent to obstruct legal process, a felony.   

The number of close associates of the president who were fired, who quit, resigned, were implicated in unethical behavior, indicted, convicted, locked up, the many ongoing (and redacted) investigations into Unindicted Donald and numerous associates, do not appear to be factors in the presumed-innocent president’s favor.  Nor does his blanket, openly contemptuous refusal to obey any and all subpoenas and his standing order to everyone with pertinent information not to speak to Congress.  

Or, we can go with Bill Barr’s generous, loyal, exculpatory view:   

The president’s motive was, as Mueller himself “acknowledged,” that the president was (righteously) angry and frustrated, which anyone would have been in the president’s position, particularly if they knew they were innocent.  The president, said Barr, has been proven as innocent, of everything, as viciously villainized pious Christian girls’ basketball coach and scrupulously fair Justice Boof Kavanaugh himself, unfairly besieged on every side by enraged, irrational partisan spies and traitors, funded by a cabal of wealthy extreme leftwing freedom haters,  who don’t base their actions on fact and reason, but on irrational hatred of a good and unfairly, illegally, attacked man whose only crime is trying to restore lost greatness to our divided nation.  As Jesus Christ Himself desires, most ardently.

Here is  Mueller’s immediate written reaction to Barr’s purposeful misinterpretation of the findings of his investigation, which Barr only withheld from public view for less than a month, while he pressed on with his false and misleading narrative about Mueller’s findings.  In common language Mueller’s short letter boils down to: dude, why are you lying?

You decide which side of the scale the totality of the evidence that Trump obstructed (and continues to obstruct) justice comes down on, now that you’ve considered both sides.   You have a strong summary denial, on one side, and hundreds of pages of sworn testimony and doggedly uncovered unflattering facts on the other.  

And more than a thousand former federal prosecutors, from both parties, signing a letter that asserts the obvious: but for the fact that this man is the president, he’d have been indicted on several counts already, based on the evidence that Mueller laid out.

As for who is to make the final determination on holding a colorably corrupt president accountable to the rule of law, Mueller wrote:

The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.

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