Robert Mueller investigation

[B-Fly]

Trump appears to have his team's insubordination to thank for his avoidance of an obstruction of justice charge. If his people actually obeyed him, he'd have been totally screwed.

[The Feral Slasher]

Trump appears to have his team's insubordination to thank for his avoidance of an obstruction of justice charge. If his people actually obeyed him, he'd have been totally screwed.

Well if the Dems can't label him a crook, at least they can say he is a poor and ineffective leader !

[Kevin Seitzer]

Trump appears to have his team's insubordination to thank for his avoidance of an obstruction of justice charge. If his people actually obeyed him, he'd have been totally screwed.

In some part yes, but also to the DOJ position that they can't indict a sitting president. It sounds like they thought they have enough evidence but that it was ultimately up to Congress to decide what to do with that evidence. They couldn't clear him based on the evidence, and they had no ability to indict him.

[nots]

I fully expect Congress to now impeach him.

[The Feral Slasher]

In some part yes, but also to the DOJ position that they can't indict a sitting president. It sounds like they thought they have enough evidence but that it was ultimately up to Congress to decide what to do with that evidence. They couldn't clear him based on the evidence, and they had no ability to indict him.

So according to Barr anyway (as reported by Bloomberg), this did not play a part in Mueller's decision, at least related to obstruction.

https://twitter.com/business/status/1118881462370164737/photo/1?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1118881462370164737&ref_url=https%3A%2F%2Fwww.nakedcapitalism.com%2F2019%2F04%2F200pm-water-cooler-4-18-2019.html

[Sour Masher]

I fully expect Congress to now impeach him.

To quote another poster on here, "I disagree."

[Kevin Seitzer]

So according to Barr anyway (as reported by Bloomberg), this did not play a part in Mueller's decision, at least related to obstruction.

https://twitter.com/business/status/...4-18-2019.html

The Introduction to Volume II makes it clear that Barr lied about that. I haven't read beyond that yet for more detail, but even that makes it quite clear.

[The Feral Slasher]

The Introduction to Volume II makes it clear that Barr lied about that. I haven't read beyond that yet for more detail, but even that makes it quite clear.

Interesting. Added link and excerpt below that is consistent with what you say. Assuming that is accurate. Probably best to just wait a month or two and re-visit.

https://www.buzzfeednews.com/article/zoetillman/donald-trump-obstruction-mueller-report

Mueller wrote that historical guidance from the Justice Department against indicting a sitting president in part guided his decision not to make a “traditional prosecutorial judgment” about whether Trump committed obstruction. The Office of Legal Counsel had previously issued an opinion that the indictment of a sitting president would “impermissibly undermine” the functions of the executive branch, and Mueller said he recognized that independently as well.

Mueller wrote in the introduction to the section of his report on obstruction that Trump “took a variety of actions” related to the FBI’s investigation into Russian interference “that raised questions about whether he had obstructed justice.”

[Kevin Seitzer]

Mueller report is available here:

https://cdn.cnn.com/cnn/2019/images/04/18/mueller-report-searchable.pdf

An excerpt:

Beginning in 2017, the President of the United States took a variety of actions towards the ongoing FBI investigation into Russia's interference in the 2016 presidential election and related matters that raised questions about whether he had obstructed justice. The Order appointing the Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the FBI's Russia investigation , including whether the President had obstructed justice in connection with Russia-related investigations. The Special Counsel's jurisdiction also covered potentially obstructive acts related to the Special Counsel's investigation itself. This Volume of our report summarizes our obstruction-of-justice investigation of the President. We first describe the considerations that guided our obstruction-of-justice investigation, and then provide an overview of this Volume:

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. 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 perform its constitutionally assigned functions" in violation of "the constitutional separation of powers." 1 Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations , see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC's constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.

Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President's term is permissible . The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system , we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person's conduct "constitutes a federal offense." U.S. Dep't of Justice, Justice Manual§ 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast , a prosecutor's judgment that crimes were committed, but that no charges will be brought , affords no such adversarial opportunity for public name-clearing before an impartial adjudicator .

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report , could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President's term , OLC reasoned, "it would be very difficult to preserve [an indictment 's] secrecy, " and if an indictment became public, "[t]he stigma and opprobrium" could imperil the President's ability to govern." 6 Although a prosecutor's internal report would not represent a formal public accusation akin to an indictment, the possibility of the report 's public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining "that the person's conduct constitutes a federal offense ." Justice Manual § 9-27.220.

Fourth, 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 the applicable legal standards , however , we are unable to reach that judgment. The evidence we obtained about the President 's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

[Kevin Seitzer]

And then from the conclusion to Volume II, this section also seems relevant/important:

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

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. 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.

STATUTORY AND CONSTITUTIONAL DEFENSES
The President's counsel raised statutory and constitutional defenses to a possible obstruction-of-justice analysis of the conduct we investigated. We concluded that none of those legal defenses provided a basis for declining to investigate the facts.

Statutory defenses. Consistent with precedent and the Department of Justice's general approach to interpreting obstruction statutes , we concluded that several statutes could apply here. See 18 U.S.C. §§ 1503 , 1505, 1512(b)(3) , 1512(c)(2). Section 1512(c)(2) is an omnibus obstruction-of-justice provision that covers a range of obstructive acts directed at pending or contemplated official proceedings . No principle of statutory construction justifies narrowing the provision to cover only conduct that impairs the integrity or availability of evidence. Sections 1503 and 1505 also offer broad protection against obstructive acts directed at pending grand jury , judicial, administrative, and congressional proceedings , and they are supplemented by a provision in Section 1512(6) aimed specifically at conduct intended to prevent or hinder the communication to law enforcement of information related to a federal crime.

Constitutional defenses. As for constitutional defenses arising from the President's status as the head of the Executive Branch, we recognized that the Department of Justice and the courts have not definitively resolved these issues. We therefore examined those issues through the framework established by Supreme Court precedent governing separation-of-powers issues. 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 . Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers .

The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regard less of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President's ability to fulfill his constitutional mission. The term "corruptly " sets a demanding standard. It requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others. A preclusion of"corrupt" official action does not diminish the President's ability to exercise Article II powers. For example , the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment , avoiding financial liability, or preventing personal embarrassment. To the contrary , a statute that prohibits official action undertaken for such corrupt purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. It also aligns with the President's constitutional duty to faithfully execute the laws. Finally, we concluded that in the rare case in which a criminal investigation of the President 's conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President 's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

CONCLUSION
Because we determined not to make a traditional prosecutorial judgment , we did not draw ultimate conclusions about the President 's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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 the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

[onejayhawk]

Yet, for practical purposes, it does exonerate him.

J

[TranaGreg]

Yet, for legal purposes, it does exonerate him.

J

Fixed.

[onejayhawk]

Fixed.

For legal purposes, nothing changed.

J

[Kevin Seitzer]

I would say that, legally, the president isn't off the hook. Mueller specifically notes that it's up to Congress to decide what to do about the obstruction of justice matter, and also notes that it could be a subject for future prosecution after the president's term in office ends. But practically/politically speaking, neither of those are going to happen. Trump's "NO COLLUSION" tweets have carried the day by virtue of him installing his crony as attorney general, and everybody's basically sick of this and wants to move on. When Trump gets reelected, there are probably going to be some people on both sides of the aisle that will be disappointed they didn't deal with this matter when they could, but then it will be too late.

[onejayhawk]

I would say that, legally, the president isn't off the hook. Mueller specifically notes that it's up to Congress to decide what to do about the obstruction of justice matter, and also notes that it could be a subject for future prosecution after the president's term in office ends. But practically/politically speaking, neither of those are going to happen. Trump's "NO COLLUSION" tweets have carried the day by virtue of him installing his crony as attorney general, and everybody's basically sick of this and wants to move on. When Trump gets reelected, there are probably going to be some people on both sides of the aisle that will be disappointed they didn't deal with this matter when they could, but then it will be too late.

He absolutely is. There can be no obstruction without a crime underlying the investigation. Trump's primary defense is that there was no crime to investigate, hence Mueller and team have no standing as investigators.

For some reason, Mueller never raised that as a legal defense.

However, this is far from over. The Trump campaign has a solid case for malicious prosecution, abuse of office, and violations of civil rights.

J