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Beauchamp writes: "Special counsel Robert Mueller is tasked with trying to find out whether the Trump campaign colluded with Russia - and he's made a lot of progress, fast."

Special counsel Robert Mueller. (photo: Alex Wong/Getty)
Special counsel Robert Mueller. (photo: Alex Wong/Getty)

Mueller's Obstruction of Justice Case Against Trump Looks Damning

By Zack Beauchamp, Vox

11 January 18

This should worry Trump even more than allegations of collusion.

pecial counsel Robert Mueller is tasked with trying to find out whether the Trump campaign colluded with Russia — and he’s made a lot of progress, fast.

He’s secured guilty pleas from former National Security Adviser Michael Flynn and Trump campaign foreign policy adviser George Papadopoulos, indicted former campaign manager Paul Manafort, and subpoenaed huge numbers of documents. There are indications that he is preparing to haul in the president for an interview.

There remains, however, a crucial hole in the case for collusion — at least, the part of it known to the public. We have not seen or heard any evidence that President Trump personally participated in some kind of illegal election hacking scheme in coordination with Russian agents.

But there’s another kind of case against the president — the argument that his various attempts to undermine the Russia investigation, like firing FBI Director James Comey, constitute criminal obstruction of justice. If Mueller feels he has enough evidence, then he could seek permission to indict and prosecute Trump. It’s not clear that charges can actually be brought against a sitting president, but Mueller’s findings could nevertheless be turned over to Congress — and serve as the centerpiece of any impeachment proceedings against Trump.

That means it’s obstruction, not collusion, that poses the biggest legal and political threat to President Trump.

“If Trump exercises his power — even his lawful power — with a corrupt motive of interfering with an investigation, that’s obstruction,” says Lisa Kern Griffin, an expert on criminal law at Duke University. “The attempt is sufficient, and it seems to be a matter of public record already.”

There are basically two reasons Griffin and other legal observers believe Mueller has such a good case obstruction case. First, the evidence of obstruction is, from what we know publicly, far stronger than the evidence that Trump himself was involved in with Russian efforts to interfere in the 2016 election. Second, the crime of obstruction is legally straightforward, whereas it’s not obvious which laws Trump would have violated by accepting Russian assistance during the election.

The public, obviously, doesn’t know everything Mueller does. It could be that the collusion case is a lot clearer, or the obstruction case a lot murkier, than it appears from the outside.

But what we do know suggests that Mueller is taking the obstruction charge seriously, and that his chances of making his case are quite good — unless Trump decides to fire him or his boss.

The evidence that Trump obstructed justice seems stronger than the evidence of collusion

We know for a fact that Mueller is looking into potential obstruction charges.

On January 4, the New York Times’s Michael Schmidt reported that Trump ordered the White House counsel, Don McGahn, to convince Attorney General Jeff Sessions not to recuse himself from the Russia investigation. When McGahn failed, “the president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him,” Schmidt writes. “Mr. Trump said he had expected his top law enforcement official to safeguard him.”

The incident suggests that the president wanted law enforcement officials to protect him from criminal charges. And indeed, Schmidt reports that the episode was initially discovered by Mueller “as he investigates whether Mr. Trump obstructed the F.B.I.’s Russia inquiry.”

The irony, according to many experts, is that this kind of effort to block the Russia investigation has likely created a bigger legal problem for Trump than anything he may have done with Russians.

“So-called ‘offenses against the administration of justice’ — like obstruction of justice or lying to the FBI — are often easier to prove than the underlying criminality that the subject was trying to hide,” says Jens David Ohlin, a professor of law at Cornell. “In Trump’s case, this is undoubtedly true.”

There’s clear evidence that some of Trump’s campaign staff were in contact with Russian officials, and even interested in receiving their help in the election. The best example is the June 2016 Trump Tower meeting, where Donald Trump Jr. met with a Kremlin-linked attorney who was promising to provide dirt from the Russian government on Hillary Clinton.

But to link Trump himself to collusion, you’d need to prove that he had personally approved of this meeting, or that the Trump campaign as a whole was involved in a broader plot to work with the Russian government. In the absence of this evidence, experts say it would be very hard to charge the president with any kind of collusion-related crime. And no such evidence exists, at least in the public record.

“Nothing, to my knowledge, has come out that implicated [Trump] directly,” says Asha Rangappa, a former FBI special agent and current associate dean of Yale University.

The public evidence that Trump committed obstruction of justice — defined as “corruptly” attempting to “influence, obstruct, or impede, the due administration of justice” — is quite a bit stronger, particularly when it comes to the Comey firing.

Technically, the FBI director serves at the pleasure of the president and can be fired at any time and for any reason. However, the general belief among experts is that it’s not legal for the president to use this power in an attempt to shield himself or his family members from criminal investigation. Crucially, it does not matter whether Trump successfully shielded himself from scrutiny — all that matters is that he tried to.

“The obstruction statutes are very broad,” Griffin explains. “It matters whether Trump ‘endeavors’ to impede the DOJ and congressional investigations at any turn.”

This all hinges on what was in the president’s mind when he fired Comey. If Trump did it because he thought Comey was doing a poor job supervising the Russia investigation, that’s perfectly legal. If he did it because he was worried that Comey’s investigation might end up uncovering some kind of misdeeds by the Trump family — whether Russia-related, financial, or otherwise — then that’s obstruction.

Typically, proving intent is difficult for prosecutors, because establishing what a person was thinking at a particular moment is inherently challenging. But Trump has made things easier for Mueller — by repeatedly, even publicly, admitting that he fired Comey out of hostility to the Russia investigation.

There’s an interview with NBC’s Lester Holt in which Trump admits to removing the FBI chief because he felt “this Russia thing with Trump and Russia is a made-up story.” There was Trump’s meeting with Russian Foreign Minister Sergei Lavrov the day after the firing, where he told the foreign diplomat that “I faced great pressure because of Russia [and now] that’s taken off.” And then there are his endless tweets about how he thinks the Russia investigation is a “witch hunt” and should be shut down.

“He’s kind of making the case himself for Mueller [on] obstruction,” Rangappa concludes.

Firing Comey isn’t the only possible Trump action that could land him in hot water on obstruction charges. But the firing is the clearest example based on what we know right now — and one that seems more likely to form the backbone of any charges against Trump than anything directly related to Russian collusion.

We are still a very long way away from indictment or impeachment

Even if there were evidence of Trump personally plotting with Russia — and it may well be, squirreled away in Mueller’s files — it’s not clear whether this would constitute a crime. “Collusion” is not a legal term; Mueller would have to figure out which specific law Trump’s actions violated, which according to legal experts could be trickier than it might seem.

By contrast, there’s no similar lack of clarity about obstruction of justice. The articles of impeachment against both Richard Nixon and Bill Clinton included allegations of obstruction.

Still, as strong as Mueller’s obstruction case appears to be, there are several major hurdles he’d have to clear before bringing a case.

Under the law governing special counsels, Mueller does not have the power to simply announce that he thinks the president has committed a crime and then indict him. He doesn’t even have authority to issue a report saying that the president committed crimes, a step well short of criminal prosecution.

To do either, he would need approval from the top Department of Justice official supervising the investigation. Typically, this would be the attorney general — but since Sessions recused himself from the Russia probe, it falls to his second in command, Deputy Attorney General Rod Rosenstein.

“[Mueller] really can’t just walk into a federal court and go through the normal criminal process,” Rangappa explains. “He brings his findings to Rosenstein, he says, ‘I want to bring these charges,’ or, ‘I’m declining to bring these charges,’ and [Rosenstein] can approve or not.”

This is a crucial point of vulnerability in the case against Trump. Legally, Trump would need Rosenstein’s approval to fire Mueller — but Trump could fire Rosenstein all on his own. You’re already seeing support for this course of action building; there’s a faction of Republicans in Congress who believe that Mueller’s probe is biased against Trump and that its leader needs to be fired.

The decision would then fall to the next person in the DOJ hierarchy, Associate Attorney General Rachel Brand, to fire Mueller. If she refused, Trump could fire her and try again with her successor. The president could also muzzle Mueller, and forestall an indictment, by firing Attorney General Jeff Sessions and appointing a friendly attorney general who wouldn’t have to recuse himself from supervising the Russia probe.

These are hard things to do. Firing Mueller might require firing a massive portion of the DOJ, and new attorneys general need congressional approval. But they are potential avenues through which Trump could use his powers to take control of the investigation.

Assuming Rosenstein remains in office and concludes that Mueller’s evidence against Trump is sufficient to support an obstruction case, the question becomes what to do about it.

Current DOJ policy is that sitting presidents cannot be indicted in criminal court as a matter of constitutional law. Some scholars dispute that; my colleague Dylan Matthews has an excellent overview of the debate. But the fact that an indictment is constitutionally dubious means that Rosenstein is unlikely to greenlight bringing charges.

An alternative would be Rosenstein issuing a report detailing evidence of Trump’s alleged crimes, a document lawmakers could use in any impeachment proceedings against Trump.

Impeachment is the clearest and most constitutionally straightforward punishment for crimes by a sitting president, and the one most likely to lead to Trump’s removal from office. This means that no matter how strong Mueller’s evidence is, Trump’s fate would most likely to be decided on Capitol Hill — in a profoundly political vote. your social media marketing partner


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-18 # Rodion Raskolnikov 2018-01-11 12:28
It is really hard to get interested in an article which begins with such a falsehood:

"Mueller is tasked with trying to find out whether the Trump campaign colluded with Russia — and he’s made a lot of progress, fast."

In fact, Flynn was not charged for his meetings with Russians. Papadopolus was not charged for his meetings with anyone. The Manafort charges do no not mention Russia and the Trump campaign. So far, Mueller has laid a big goose egg. We don't know what is coming but there are no signs it will have anything to do with Russia and Trump colluding to rig the 2016 elections. It will likely be more "lying to federal investigators."
0 # Robbee 2018-01-11 16:22
Quoting Rodion Raskolnikov:
We don't know what is coming but there are no signs it will have anything to do with Russia

- pravda? comrade?
+1 # lfeuille 2018-01-11 20:54
He was charged with lying about his meeting with Russians. He acknowledged that they occurred. He wasn't charged with it or any of the other things he could have been charged with in exchange for cooperation. The initial charges don't have to mention Trump or Russia any of the end targets of the investigation. They were brought to gain cooperation.

The article admits that evidence for collusion is weak. It focuses on obstruction, where the evidence is really strong. He did it in public. He is so fucking arrogant he thinks he's untouchable. This is entirely on him. The deep state didn't frame him. He could have just sit back knowing the collusion evidence wasn't there and ignored the investigation, but he just wouldn't. I think he has been worried about money laundering and tax evasion, which there has been some evidence of for a long time and was bound to be uncovered once they started investigating him.
-16 # 2018-01-11 13:17
An "obstruction of justice" claim requires the existence of some underlying crime. Since there appears to be no underlying crime....

Lee Nason
New Bedford, Massachusetts
0 # Robbee 2018-01-11 16:25
there appears to be no underlying crime

- assuming that which you set out to prove?
-2 # Rodion Raskolnikov 2018-01-11 16:40
Yes, correct. Trump did not fire Comey. Rosenstein did. And he fired Comey for cause, not to end the investigation. Comey knows this.

I think Mueller knows he's got nothing on the obstruction issue. He's looking for a perjury trap. He's got nothing else. What is not being said is that the FBI and DOJ have a single goal and that is to bring down Trump's presidency. They started out with the goal, and they are now searching around for a means. Roger Stone may be a sketchy guy, but he is right about the plans to remove Trump from office:

Plan A -- Russiagate, and related criminal charges or impeachent
Plan B -- 25th amendment
Plan C -- terminate with extreme prejudice.

Looks like A and B are failing. Can C be long off?
+2 # lfeuille 2018-01-11 20:57
No it doesn't. It is illegal to interfere with a federal investigation period. The point of the investigation is to determine if there is a chargeable offence. It is not necessary of it to have reached a determination on that point before obstruction can apply.
-1 # Rodion Raskolnikov 2018-01-12 09:49
The only crimes so far seem to be the FBI interference in the 2016 elections. And the NSA surveillance and release of unmasked captured communications of the Trump campaign. Oh, and the FBI fraudulent submission to the FISA court for a warrant to intercept all communications of Trump's campaign. Yes, I'd say, Mueller's obstruction of justice case is looking good, but it is not against Trump. It is against the Hillary-FusionG PS-FBI-CIA.
-1 # Rodion Raskolnikov 2018-01-12 13:50
Lee -- yes, it does. And let's not forget it was Rosenstein who fired Comey. Trump expressed a wish that Comey would back off in his investigation. He did not give any orders at all to Comey. Rosenstein did give the orders.

This is another "nothing-burger ." But at least it gives the MSM something to chew on..
0 # yolo 2018-01-11 14:02
Mueller was appointed special counsel to investigate Russian government interference in US elections. Besides Trump being unable to remember what he said 10 minutes earlier, how has Trump obstructed Mueller from investigating the Russian government's alleged interfering in US elections? And as far as Trump's campaign talking with wealthy Russian's is that illegal? If so isn't Hillary campaign's also wrong by hiring investigators to talk with other Russians to find stuff on Trump?
-1 # Rodion Raskolnikov 2018-01-12 13:52
Yolo -- you need to stop thinking for yourself. You'll get thumbed down. Better just to think what these articles tell you to think. Look as me and Lee Nason. We're getting thumbed to hell. Remember OBEY, OBEY, OBEY That's how you will make friends and be accepted.
0 # lfeuille 2018-01-13 01:05
Yeah, obey the law as it is written, not as it is mangled by Fox News to shield the moron-in chief.
0 # lfeuille 2018-01-13 00:58
By firing the original head of the investigation, Comey and even admitting that he fired him because of the investigation.

By sending his flunkies, including the Attorney General to lobby Republicans in Congress to halt the investigation.

Probably more will come out as the investigation unfolds.
0 # lfeuille 2018-01-13 01:04
A prosecutor can investigate any crime uncovered during an investigation even if it is not related to the original cause for the investigation and the letter appointing Mueller makes that clear, but it is not unique to Mueller, it applies to any prosecutor. Trump is probably in the clear on the Russia noneense but the moron decided to obstruct the investigation anyway lest it discover what he is really guilty of.
+1 # Moxa 2018-01-11 14:31
For purporting to be an article about "damning" evidence, it succeeds in making the effort to oust Trump seem almost impossible.
0 # lfeuille 2018-01-13 01:13
I don't understand why you say that. Obstruction is a real indictable straight forward crime that Trump almost brags about having committed whereas the Russia stuff is vague and mostly not illegal unless a quid pro quo can be proved (very difficult) and Trump personally can be tied to it which hasn't happened yet. So it seems very doable to me legally at least. Politically it will have to wait for Trumps approval numbers to sink even lower and Dems. to take over congress.
+1 # Jaax88 2018-01-11 16:48
Obstruction of justice is interfering with the due and proper administration of the law in which any pending proceeding is being had. I believe it does not require the existence of an crime, only an investigation or proceeding is necessary.
+1 # Johnny 2018-01-11 18:17
"We have not seen or heard any evidence that President Trump personally participated in some kind of illegal election hacking scheme in coordination with Russian agents. We have not seen any evidence that the Russian government was in any way involved in the 2016 U.S. election, either. But the deep state needs a boogeyman to maintain public enthusiasm for endless war, and so uses its propaganda organ, the mainstream media, to spread the naked accusations of Russian interference as if some evidence supported them. "A lie stated repeatedly is more persuasive than a truth demonstrated." William Colby. The hysterical animosity to Russia in the idiot tv-watching masses proves Colby right.
+1 # sdraymond 2018-01-11 22:14
The Russian and right wing trolls are out in force today.
0 # lfeuille 2018-01-13 01:15
There Trump trolls. They defend him on anything whether or not it is related to Russia.
0 # PABLO DIABLO 2018-01-13 18:00
Nothing to see here. Move along now.

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