What would Mueller say?
Here are 10 questions Congress should ask — and how he may answer
Special counsel Robert S. Mueller III was supposed to provide clear answers to two questions: Did Donald Trump collude with Russia in his 2016 presidential campaign? And as president did he try to obstruct the investigations that ensued?
On collusion, the special counsel found that the Trump campaign welcomed Russia’s offer to provide “dirt” on Hillary Clinton, but that its actions didn’t meet the definition of a criminal conspiracy.
On obstruction of justice, Mueller amassed considerable evidence that Trump tried to hamstring investigators — but he chose not to say whether charges were warranted.
Now it’s Congress’ turn. House Democrats have summoned Mueller to appear before several committees, although those hearings may be a month or more away.
Here are 10 questions Congress should ask and, drawing on Mueller’s report, answers he might give. Passages in quotation marks come directly from the report.
President Trump says your report was a “complete and total exoneration” — “no collusion, no obstruction.” Is he right?
No. “While this report does not conclude that the president committed a crime, it also does not exonerate him.”
“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…. We are unable to reach that judgment.”
The report doesn’t offer a judgment on “collusion” either, because that’s not a crime. Instead, it examines whether Trump engaged in “conspiracy,” a charge that requires “agreement, tacit or express, between the Trump campaign and the Russian government.” The investigation did not find that kind of agreement, so it didn’t charge conspiracy.
What about the 2016 meeting at Trump Tower involving three top campaign aides, including Donald Trump Jr., and the Russian lawyer who purportedly promised “dirt” on Clinton? Doesn’t that look like collusion?
Maybe. “The office considered whether to charge Trump campaign officials with crimes in connection with [that] meeting,” including conspiracy to violate the law against foreign contributions. But lawyers concluded that prosecution might fail for two reasons. It wasn’t clear Trump Jr. knew that accepting that kind of help could break the law. And a prosecutor would have to prove that the promised “dirt” was worth $2,000 or more.
Does the evidence add up to a case for obstruction, even though you chose not to make a decision on that?
Yes. “Our investigation found multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” But he didn’t succeed.
That doesn’t mean he didn’t try. “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.”
Any examples?
One of the clearest is Trump’s June 2017 order to his White House counsel, Donald McGahn, to fire the special counsel. “Substantial evidence” indicates that Trump’s aim was to impede investigations of his conduct. McGahn considered the request improper and refused to carry it out. “There also is evidence that the president knew he should not have made those calls to McGahn.”
Later, when the New York Times revealed the episode, Trump ordered McGahn to deny the newspaper’s account even though it was true. “The president acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny.” Those are all elements of an obstruction charge.
Anything else?
Also in 2017, Trump tried to order Atty. Gen. Jeff Sessions to limit the investigation’s mandate to future elections, not the 2016 campaign. The intent of his order was “to prevent further investigative scrutiny of the president’s and his campaign’s conduct.” Again, aides didn’t carry it out. What about the decision to fire James B. Comey as FBI director in May 2017?
Yes, the evidence indicates that Trump believed removing Comey would “protect [him] from an investigation into his campaign.”
But if there was no underlying crime of collusion — at least, no conspiracy you could prove — can there still be obstruction?
Sure. “Proof of such a crime is not an element of an obstruction [charge]…. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.”
Despite all that evidence — and there’s more — you avoided saying whether obstruction charges were warranted. Why?
The Justice Department’s Office of Legal Counsel has issued an opinion that a prosecutor cannot indict a sitting president while he’s in office. The report not only accepts that rule; it endorses its reasoning.
“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,” the report says.
Are you saying that if the president committed obstruction of justice, the proper remedy is for Congress to consider impeachment?
I never used the word “impeachment.” I used “constitutional processes.” But yes, that’s what I meant.