Mueller: This Was Not a 'Typical' Obstruction of Justice Case

Susan Jones | April 19, 2019 | 6:44am EDT
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(Photo by Kevin Dietsch-Pool/Getty Images)

( - Because the Mueller team was investigating the President of the United States, this was not a "typical" obstruction of justice case, the report says.

The report says some of Trump's actions, such as firing the FBI director, "facially" fell within his authority as president.

"At the same time," the report states, "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."

However, the report makes it clear that Trump was unsuccessful in getting his subordinates to carry out his will.

"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," the report said.

For example, the report notes that then-FBI Director James Comey did not end the investigation into Trump's former National Security Adviser Michael Flynn; Attorney General Jeff Sessions refused Trump's request to "unrecuse" himself; White House Counsel Don McGahn twice refused President Trump's request that McGahn call Rod Rosenstein and tell him to fire Robert Mueller (Trump disputes this; he said he  never used the word "fire"); and Trump's former adviser Cory Lewandowski never followed through on Trump's request to direct Attorney General Sessions to publicly announce that the Mueller investigation was "very unfair" to Trump.

The Special Counsel says this investigation was atypical for other reasons as well: There was no underlying crime of collusion or conspiracy; and the president's thoughts and feelings often were on full public display.

"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," the report said. "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."

The report also points to the president's many tweets and public comments:

"[M]any 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."

The Mueller report said although the team investigated a series of "discrete" actions, "inferences...can be drawn about his intent" from "the overall pattern of the President's conduct towards the investigations."

"In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President's motives, the report said:

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.

However, the report concludes:

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.

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