Mueller’s Mixed Message: The Special Counsel’s Shrug Over Obstruction

Below is my column in The Hill newspaper on the Barr summary of the Special Counsel findings.

Here is the column:

After millions of dollars and two years of investigation, the summary of the findings of special counsel Robert Mueller is out. First and foremost, Mueller found there was no established conspiracy or collusion between anyone in the Trump campaign and the Russians. Second, Mueller made a curious type of prosecutor “declination” — not declining to prosecute, as he did on collusion, but declining an opinion either way.

That’s right: After more than 2,800 subpoenas, 500 search warrants, interviews with hundreds of witnesses and almost 300 judicial orders for records and surveillance, Mueller simply offered a collective shrug from his team regarding the question of obstruction of justice.

That was understandably not sufficient for Attorney General Bill Barr and Deputy Attorney General Rod Rosenstein, who hold the quaint notion that prosecutors are supposed to reach conclusions. That is what they did in a matter of two days, finding that the evidence was clearly insufficient to establish the crime of obstruction.

Special counsels are not supposed to end investigations like “The Sopranos” TV series, leaving it to the viewer to guess whether Tony Soprano survived his final scene. In reality, the answer is abundantly clear. While the evidence of obstruction was always stronger than collusion, it would be a laughable case to bring in a court of law.

Collusion

For two years, legal analysts and politicians convinced voters there was a strong case of collusion-related crimes. The drumbeat of “bombshell” disclosures and “smoking gun” stories was disconcerting and, frankly, disgraceful. At the time of Mueller’s appointment, I wrote that there is no such crime as collusion and little chance that a collusion-related crime like conspiracy could be established. With each new “speaking indictment,” that view was reinforced.ADVERTISEMENT

Yet, in this age of rage, people were eager to believe experts explaining that a strong case for criminal charges was already established on collusion and they just had to “wait for Mueller” to set things right. Those of us questioning such analysis were painted as “Trumpers” and apologists, even though we criticized Trump for his conduct and comments. 

The plain fact is that fostering the collusion delusion meant windfall ratings and benefits for pundits and politicians alike. The Democrats used the investigation — and the threat of impeachment — as a rallying cry to retake the House. CNN, MSNBC and others made massive profits off the echo-chamber coverage of the deepening collusion case supposedly to be made by Mueller.Indeed, when I detailed the glaring legal flaws in the collusion theory in February 2018, CNN legal analyst and former White House ethics attorney Norm Eisen assured viewers the criminal case for collusion was “devastating” and Trump was “colluding in plain sight.” Eisen recently was hired by the House Judiciary Committee to help direct its investigation of the president.

He was not alone. Cornell Law School Vice Dean Jens David Ohlin declared Donald Trump Jr.’s emails on the infamous Trump Tower meeting were sufficient for criminal charges as “a shocking admission of a criminal conspiracy.” MSNBC legal analyst Paul Butler identified the crime as “conspiring with the U.S.’s sworn enemy to take over and subvert our democracy” and declared that “what Donald Trump Jr. is alleged to have done is a federal crime.”

Even after some of us noted that the absence of additional indictments clearly showed Mueller had not found criminal collusion, many rushed forward to keep the delusion alive. On Sunday, House Intelligence Committee chairman Adam Schiff (D-Calif.) went on CBS’s “Face the Nation” to insist there is ample evidence of collusion — even though not a single person was charged with it. He also insisted Trump might be guilty of collusion but Mueller simply could not indict him under existing Justice Department policies.

That, too, turned out to be untrue. Mueller found no evidence of either Trump or his campaign colluding with the Russians.

Obstruction

While Mueller can be commended for reaching a conclusion on collusion, his position on obstruction was incomplete and, frankly, irresponsible. Mueller simply says that “While this report does not conclude that the president committed a crime, it also does not exonerate him.”

What does that mean, exactly? Law is not supposed to be an impressionistic art form in which some see a criminal and others see a crank.

Yet, Barr reported that “The Special Counsel… did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.”

Of course, we all knew there was evidence on both sides of this issue. As Barr notes, most of that evidence already has been publicly discussed. Yet, Mueller seems to have left the public with a lingering Sopranos-like finale of “What do you think?”

If Mueller believed Trump’s conduct constituted obstruction, he had a duty to say so. What makes his position all the more maddening is that the question does not appear a close one. As I have previously discussed in columns, it is possible to charge someone for obstructing an investigation into a nonexistent crime. While it is hard to do, Trump made his best effort with a long series of inappropriate comments and actions viewed as hostile to the investigation.ADVERTISEMENT

However, the question of a criminal charge comes down to motivation and state of mind. Trump’s comments on the investigation are not isolated departures from the new normal of his administration. He has ignored widespread calls for restraint in his public statements on subjects ranging from immigration to North Korea to NATO. In these areas, he has incautiously attacked cabinet members and fired a slew of officials, from Secretary of State Rex Tillerson to multiple chiefs of staff.

Mueller concluded that Trump was not hiding collusion but was taking steps that could be viewed as obstructive. That is obvious.

However, to bring a criminal case on the actual crime of obstruction would be absurd. Trump could simply argue that he viewed the collusion investigation to be a deep-state conspiracy and refused to stay quiet about it — but he never fired Mueller, destroyed evidence, or forced an early conclusion to the investigation. Indeed, even fired FBI director James Comey said Trump agreed that the investigation should be allowed to continue, to reach its own conclusions. Trump objected that Comey would not tell the public what he was telling Congress: that Trump was not a target of that investigation.

None of this moves Trump out of legal jeopardy. He just pulled free of the gravitational pull of Jupiter but is now entering the asteroid belt of multiple smaller investigations across a broader expanse. From the Southern District of New York to various congressional committees, these investigations likely will continue for much if not all of his remaining term.

It is not clear if Trump has learned from this experience. He almost “counterpunched” his way into an obstruction prosecution. It also is not clear if many voters have learned the countervailing lesson about rage and reality in analyzing alleged crimes.

For two years, “Wait for Mueller” has become an increasingly desperate mantra. Many viewed Mueller as the anti-Trump who would finally rid them of this meddlesome president.

Well, Mueller has come and Trump is likely to remain. That is the reality, and all the rage in the world is unlikely to change it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

118 thoughts on “Mueller’s Mixed Message: The Special Counsel’s Shrug Over Obstruction”

  1. Comey in interview questions both Mueller and Barr:

    Mueller (same point made to me by DOJ source):

    “Speaking to “Nightly News” host Lester Holt, Comey said he couldn’t “quite understand” why Mueller didn’t come to a conclusion regarding obstruction when the “entire rationale for the special counsel is to make sure the politicals aren’t making the key charging decisions.”

    “So the idea that a special counsel wouldn’t reach the question and hand it to the political leadership doesn’t make sense,” Comey said.”

    Barr:

    Mueller’s probe did not conclude that Trump’s campaign had conspired with Russia ― which Comey called “good news no matter what party you’re associated with.”

    “It’ll be important to read the entire report, but, based on what I’ve seen, this is a good thing,” he added.

    Still, a lack of an underlying crime doesn’t automatically absolve Trump of possible obstruction, Comey noted.

    “The notion that obstruction cases are somehow undermined by the absence of proof of an underlying crime, that is not my experience in 40 years of doing this, nor is it the Department of Justice’s tradition. Obstruction crimes matter without regard to what you prove about the underlying crime,” Comey said.

    1. Health care, gun control, immigration, the environment, restoring our place as a leader in NATO and other alliances with our fellow democracies, and get the pig out of the WH. I’m expecting that the confirmation of sleaziness that will come out with the Mueller report will also help. In short, same as we did in 2018

  2. Mueller’s “shrug” on evidence of obstruction by Trump may be because Mueller does not want to cast doubt on a possible forthcoming prosecution by the NY State prosecutor.

    1. be because Mueller does not want to cast doubt on a possible forthcoming prosecution by the NY State prosecutor.

      The New York State Attorney-General and the DA in Manhattan are going to prosecute Trump for obstructing federal investigators and prosecutors? Which gambit are they going to use, the Comey firing or the mean tweets?

    2. no its just because he’s a bitter old fart who is headed back into retirement and spat a goober at the president. very unprofessional.

  3. What happened to the bird was far more interesting since it involved a missing link at the minimum when the answer was probably at the finger tips of most of us.

    I first saw three cranes the the fourth. bottom right corner on one of the near to view pilings. But I never saw the missing link to report the find. Instead I sent it straight to the Professor.

    The key is an old hunters or recon trick to look for something out of place. Example No such thing as a straight line in nature. look for curves

    But having double magnification helped.

    As for the actual subject we had the answer two years ago using the same tip and the rest is now ho hum and further strengthens the resolve to never vote for those who deal in crooked versus straight verbiage which of course means those who prevaricate the obvious…

    Such as claiming Our Democracy in and for a country that has never been a Democracy. no for that matter used all that much of democratic principles in it’s political system.

    or KISS principle works too. Look it up If it isn’t there it doesn’t exist.

  4. A valid example of what Anon is referring to is the Scooter Libby case.
    The prosecutor knew at the outset who leaked Valerie Plame’s name to the media ( Robert Novack).
    I think it was Richard Armitage who immediately admitted that he was the one who let it slip to Novack that Plane was with the CIA.
    Armitage later was asked how he knew that Plame worked for the CIA, Armitage was quoted as dayon “because her husband Joe Wilson tells everyone his wife works at the CIA.
    Armitage was not charged, but the prosecutor wanted to see if he could catch anyone lying about Armitage’s role.
    The ostensible purpose of the investigation and the special prosecutor was to find out who ‘leaked” Plame’s name to the media.
    The prosecutor learn that almost immediately, and there was a weak case against Armitage, who cooperated early and fully.
    The controversy over Libby’s “perjury trap” and sentence stemmed from the prosector’s eagerness to “find a crime” once he found out the information he was appointed to find out.
    Once a prosecutor knows what happened and there are no criminal charges, it seems like overkill to go out and try to “find a crime” related to an investigation that found no crime initially.
    I’m not 100% sure of the special Prosecutor’s name so I don’t want to mention it; I know that the way he handled the Libby case did not enhance his reputation.

  5. Supreme Court Justice Kavanaugh wanted Starr to pursue an absurd interpretation of obstruction against Bill Clinton. After Kavanaugh changed jobs and a Republican entered the White House, he “changed his mind” as to what it meant to obstruct. In an eerily similar manner, it looks like a number of people on Mueller’s staff wanted to do the same thing against Trump. You’re not supposed to adopt absurd legal principles based on who is in the White House.

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