MULLING OVER THE MUELLER REPORT – VOL. II, OBSTRUCTION PSST: I'M DONE

I’ve finally finished reading Volume II of the Mueller Report on Obstruction of Justice.  Because several friends asked me to comment on it, I felt I should.  Others of you have probably heard quite enough, so you can skip this and do something fun.

I am now satisfied that the only reason Mueller didn’t charge the President with obstruction of justice is because he, as a Department of Justice (DOJ) employee, felt obligated to adhere to the unlitigated DOJ policy (i.e. the Office of Legal Counsel [OLC] opinion letter) that a sitting President cannot for constitutional reasons be indicted.  I’m also convinced that because Mueller found legally sufficient evidence to charge the President with obstruction but couldn’t, he felt compelled to reiterate that Congress has the constitutional authority to determine whether, based on the evidence outlined in the Report, impeachment is warranted.  

Here, then, is my “translation” of Vol. II in plain English.  Quoted and indented materials are taken directly from the Report.

The Introduction lays out four considerations that guided Mueller's obstruction-of-justice investigation.  First, Mueller “determined not to make a traditional prosecutorial judgment” for the following reasons (emphasis added): 

Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, … 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... potentially preempt constitutional processes for addressing presidential misconduct.²

In plain English:  I am a DOJ employee.  I play by DOJ rules, and even though your policy is based on an OLC opinion letter that reaches a conclusion that has never been tested in a court of law, I will accept it.  However, Congress is not bound by the OLC conclusion and has its own constitutional authority to impeach.  See my Footnote 2. 

There is a nice discussion of the significance of Footnote 2 in Bloomberg News (link:  https://news.bloomberglaw.com/white-collar-and-criminal-law/insight-mueller-doctrine-prevented-finding-that-trump-committed-crimes): 

In a footnote supporting this proposition [that Congress can impeach where Mueller could not charge a crime], that future Constitutional scholars will no doubt refer to famously as Mueller Footnote 2, the special counsel cited:

• Article I, Section 2, Clause 5 of the Constitution (“The House of Representatives . . . shall have the sole Power of Impeachment”);
• Article I, Section 3, Clause 6 of the Constitution (“The Senate shall have the sole Power to try all Impeachments”); and
• the pages of the OLC memo concluding that it is not for the DOJ but for Congress to determine whether the public interest in removing a sitting president “whose continuation in office poses a threat to the Nation’s welfare outweighs the public interest in avoiding” the burdens incident to the impeachment process. 

I don’t know how Mueller could be any clearer:  If it's not the DOJ's job to remove a sitting President by a criminal process, then give the Report to Congress and let them do their thing.  No one is above the law.

Second, Mueller confirms that the OLC opinion letter allows him to investigate a sitting President.  Then he adds something unnecessary which to me suggests that he found legally sufficient evidence of obstruction; namely, that he set out the evidence in the Report at length because a sitting President can be indicted after leaving office.  

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, Mueller decided that fairness prevented him from concluding in his Report that he had established obstruction, because there would be no legal proceeding resulting from the Report in which the President could defend himself. 

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.

In plain English:  If I said I established obstruction and the Report became public, that would be unfair to the President, because he couldn't defend himself in a court of law, there being no indictment to follow, so I won’t say that.  (Note, by the way, that Mueller is specifically not conclusively determining the President’s guilt or innocence, as Emmet Flood claimed in his letter to AG Barr.  This is an internal Report, not a grand jury proceeding.   https://mkj-actually.blogspot.com/2019/05/when-it-reigns-it-floods.html )

Fourth, while Mueller feels constrained by issues of fairness and the OLC opinion letter from saying that he did establish obstruction, he is not prevented from saying that he did not establish obstruction (emphasis added):

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.

In plain English:  If the evidence did not establish obstruction beyond a reasonable doubt, I would have said so, just as I did in Vol. I. as to conspiracy. 

Mueller investigated 11 possible instances of obstruction, to which he applied the elements of the crime:  an obstructive act, a nexus to a proceeding, and corrupt intent.  He also examined witness tampering.  The bulk of the balance of his Report takes each possible instance in turn and outlines the extensive evidence he collected.  He does not state a conclusion as to any of the 11 possible acts of obstruction or any act of witness tampering, for the reasons he outlined in the Introduction.  

Finally, the Report explores the various defenses to the application of obstruction of justice statutes to the President raised by his counsel, all of which Mueller discounts.  I will not bore you with those, especially since I whizzed right through them.  It's the conclusion that counts here, which is...

Mueller had a binary choice:  clear the President of obstruction or keep his mouth shut.  He specifically said he could not exonerate the President from this crime and clearly tossed the ball into Congress' court for possible impeachment.  After reading Vol. II for myself, I find it rather shocking that AG Barr took it upon himself to exonerate the President, acting not only contrary to Mueller's conclusions, but doing precisely what Emmett Flood accused Mueller of doing; namely, acting as a trier of fact.  And it's even more shocking that AG Barr is now preventing Congress from carrying out its Article I constitutional duty to determine if the President's acts amounted to high crimes and misdemeanors for which impeachment articles are appropriate.  But that's where we are.

I think I’m now done with the Mueller Report, but I can’t say I feel any the better for it.  I think hundreds of former federal prosecutors agree with me:  https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1 
 

P.S.  The redacted text at the head of this post is from a book by Emilio Isgro', an Italian artist. 

Keep it real!

Marilyn