Tuesday, April 23, 2019

Turning up the heat on Trump's obstructive conduct

Judd Legum (popular.info) makes the case for the obstruction charge. The evidence is far stronger than what Barr announced in his “summary” of the Mueller report.

Mueller’s overwhelming evidence on obstruction

In his March 24 letter summarizing the Mueller report, Attorney General Bill Barr states that, on the obstruction issue, “for each of the relevant actions investigated, the report sets out evidence on both sides of the question.” Now that we can read most of the report, it’s clear this is not accurate.

The report looks at a variety of obstructive conduct and evaluates them against the three basic elements for an obstruction charge:

–1. Was there an obstructive act?
–2. Was there a nexus to an ongoing official proceeding?
–3. Was there “corrupt” intent?

In at least 4 cases, Mueller reviews conduct that meets all three elements for obstruction of justice and provides no substantial exculpatory evidence. Mueller’s analysis was helpfully summarized by Quinta Jurecic, the managing editor of Lawfare blog.

Jurecic provides a “heat map” showing the coincidence of the basic elements - or lack of it - for each of several instances of alleged obstruction. In it, below, you want to look for rows showing three red squares


Legum provides an example.

… the report examined various efforts Trump undertook to remove Mueller as special counsel, including ordering former White House Counsel Don McGahn to have Mueller removed.

On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.

The report lays out evidence that Trump’s actions were:

–1. Obstructive. (“[T]he attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.”)

–2. Connected to an ongoing inquiry. (“Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”)

–3. Corrupt. (“There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office – and McGahn himself – could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts.”)

This goes on for hundreds of pages and numerous examples. It is an exhaustive, overwhelming case based on mountains of evidence and the testimony of Trump’s closest aides.

Jurecic’s analyses of the four cases in which the three basic elements coincide follow the break. Each is labeled with the row letter from the chart above.

These cases go beyond merely “no exoneration.” On my reading, they are proven charges of obstruction of justice by the President.

E. Efforts to fire Mueller

Obstructive act (p. 87): Former White House Counsel Don McGahn is a “credible witness” in providing evidence that Trump indeed attempted to fire Mueller. This “would qualify as an obstructive act” if the firing “would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.”

Nexus (p. 89): “Substantial evidence” indicates that, at this point, Trump was aware that “his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”

Intent (p. 89): “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct[.]”

F. Efforts to curtail Mueller

Obstructive act (p. 97): Trump’s effort to force Sessions to confine the investigation to only investigating future election interference “would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry.” “Taken together, the President’s directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign[.]”

Nexus (p. 97): At the relevant point, “the existence of a grand jury investigation supervised by the Special Counsel was public knowledge.”

Intent (p. 97): “Substantial evidence” indicates that Trump’s efforts were “intended to prevent further investigative structiny of the President’s and his campaign’s conduct.”

I. Order to McGahn to deny Trump’s order to fire Mueller

Obstructive act (p. 118): This effort “would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness[.]” There is “some evidence” that Trump genuinely believed press reports that he had ordered McGahn to fire Mueller were wrong. However, “[o]ther evidence cuts against that understanding of the president’s conduct”—and the special counsel lists a great deal more evidence on this latter point.

Nexus (p. 119): At this point “the Special Counsel’s use of a grand jury had been further confirmed by the return of several indictments.” Mueller’s office had indicated to Trump’s lawyers that it was investigating obstruction, and Trump knew that McGahn had already been interviewed by Mueller on the topic. “That evidence indicates the President’s awareness” that his efforts to fire Mueller were relevant to official proceedings. Trump “likely contemplated the ongoing investigation and any proceedings arising from it” in directing McGahn to create a false record of the earlier interaction.

Intent (p. 120): “Substantial evidence indicates that … the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny” of Trump.

K. Conduct toward Michael Cohen

Obstructive act (p. 153): “[T]he evidence available to us does not establish that the President directed or aided Cohen’s false testimony.” But “the evidence … could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or to undermine Cohen’s credibility once Cohen began to cooperate.”

Nexus (p. 154): Trump was aware of investigations into Cohen by the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York.

Intent (p. 155): “There is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government … The evidence could support an inference that the President was aware of [Cohen’s efforts to continue the Moscow Project past January 2016] at the time of Cohen’s false statements to Congress … The President’s public remarks following Cohen’s guilty plea also suggest that the President may have been concerned about what Cohen told investigators about the Trump Tower Moscow project … The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than the investigation of Trump Tower Moscow. There is also some evidence that the President’s concern about Cohen cooperating was based on the President’s stated belief that Cohen would provide false testimony against the President in an attempt to obtain a lesser sentence for his unrelated criminal conduct … Finally, the President’s statements insinuating that members of Cohen’s family committed crimes after Cohen began cooperating with the government could be viewed as an effort to retaliate against Cohen and chill further testimony adverse to the President by Cohen or others.”

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