Read Vol 1 of this analysis Mueller Report Obstruction series here.
As the Democrats prepare to bring in Robert Mueller to testify in front of two House Committees on Wednesday, I continue to analyze the Mueller Report. In my ongoing series about the Mueller Report, Volume 2: Obstruction of Justice, I break down and legally analyze the first three “key issues and events we [Mueller] examined” out of the ten we often hear about. Realize these key issues get very nuanced in the law, and I am only outlining the claims and outcomes as related to a potential finding of obstruction of justice.
As a reminder, obstruction of justice is defined as (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. This is a conjunctive law, meaning all three of these elements must have occurred for there to be a case for obstruction of justice. In conjunctive law, it is not enough for one or two of the elements to be present; all of the elements of the crime must be proven by the prosecution beyond a reasonable doubt.
The Campaigns Response to Reports about Russian Support for Trump
1. The crucial first issue and event examined by Mueller was “The Campaign’s Response to Reports About Russian Support for Trump” Mueller Report, Volume 2, Page 15. Right off the bat, there is not an official proceeding here. Meaning there was not an investigation by the government that Trump was aware of when Trump was responding to the initial reports about Russian support.
However, let’s examine precisely what is in the report.
“During the 2016 campaign, the media raised questions about a possible connection between the Trump Campaign and Russia.” Muller Report, Volume 2, Page 15. After Wikileaks released damaging but factual, information about the Democrat Party, the speculation was that Russia hacked the Democrat National Convention. Mueller then goes into outlining press reports that alleged links between the Trump Campaign and Russia, the Trump Campaign’s reaction to Wikileaks’s release of the hacked emails, the Trump Campaign’s reaction to allegations that Russia was seeking to aid candidate Trump, and Trump’s continued denial to any contact or connections with Russia following the election."
Did you notice what was missing in the entire rundown of the Mueller Report on the Campaign’s response to reports about Russian support for Trump? There was never an investigation going on throughout this specific section of the report. It was merely outlining what occurred pre and post-election. There was never an obstructive act that interfered with an official proceeding. Without either of these two elements of obstruction of justice, there cannot be obstruction of justice. Accordingly, Mueller clears Trump of obstruction of justice on this crucial issue. Therefore, next time someone says Mueller outlined ten ways Trump obstructed justice, realize that is a flat out falsity.
The Presidents Conduct Concerning the Investigation of Michael Flynn
2.The next key issue and event examined by Mueller was “The President’s Conduct Concerning the Investigation of Michael Flynn.” Mueller Report, Volume 2, Page 24. However, this section, too, does not amount to obstruction of justice. As discussed in the first article of this series, the President of the United States has full authority to start and stop an investigation being conducted by the DOJ and FBI because they are within the Executive Branch.
Regarding Trump’s statement that Comey should “let  Flynn go,” “Comey testified under oath that he took the President’s statement ‘as a direction’ because of the President’s position and the circumstances of the one-on-one meeting.” Mueller Report, Volume 2, Page 40. Meaning, Trump is directing the officers of the Department of Justice who are under the control of the President. In the Intent Section of this issue, Mueller stated that the President connected the Flynn investigation to the FBI’s broader Russia investigation. This is important because it shows Trump had the intent to end the Russia investigation, which at that time, Trump was not being investigated. Accordingly, Trump could not have obstructed justice regarding the Russia investigation at this time, as there was not an investigation regarding Trump directly. Therefore, the President is able to control the DOJ as he sees fit, and he can start and stop investigations as he wishes, as was discussed in the previous article. While Mueller does not clear Trump on this issue specifically, the Constitution, Founding Fathers, and Supreme Court case-law do clear Trump of any wrongdoing on this key issue.
On Fox News with Chris Wallace House Judiciary Committee Chair Jerry Nadler discusses what new info Democrats hope to hear from Robert Mueller.
The Presidents Reaction to Public Confirmation of the FBI's Russia Investigation
3. The next key issue examined by Mueller was “The President’s Reaction to Public Confirmation of the FBI’s Russia investigation.” Mueller Report, Volume 2, Page 48. When Trump found out that there was a Russia investigation, he asked Comey and other intelligence agency leaders to push back publicly on the suggestions that Trump had any connection to the Russia election-interference in order to “lift the cloud” of the ongoing investigation. Trump did not want Attorney General Sessions to recuse himself from the investigation and was very upset at the recusal.
The main issue throughout this section is that Trump wanted the DOJ to confirm the fact that Trump had done nothing wrong related to Russia, which was confirmed in the Mueller Report, Volume 1. Furthermore, the obstructive act needed to commit obstruction of justice is not present here: “These requests [to lift the cloud and confirm Trump had done nothing wrong related to Russia], while significant enough that Rogers thought it important to document the encounter in a written memorandum, were not interpreted by the officials who received them as directives to improperly interfere with the investigation.” Mueller Report, Volume II, Page 60. “The evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation.” Mueller Report, Volume II, Page 60. Since all of the factors of obstruction of justice are needed to find obstruction of justice occurred, this key issue fails as well. Accordingly, as with the first section of Volume 2, Mueller clears Trump of obstruction on this key issue.
Throughout the first three key issues of the Mueller Report, Volume 2, Trump has been completely vindicated by the report. Stay tuned for the next article outlining the next three key issues.