which element?

Posted on: July 25, 2019 at 08:22:45 CT

There’s a logical disconnect in volume 2 of Special Counsel Robert Mueller’s report that is unmissable to any careful reader.

As Mueller explains in the report, a charge of obstruction of justice requires three elements: an obstructive act, a nexus with an official proceeding, and corrupt intent. And in the report, Mueller’s team laid out several cases where President Donald Trump committed an obstructive act, in connection with an official proceeding, with what Mueller’s team concluded could be a corrupt intent.

But because Mueller had decided at the outset of his report that he could not and would not charge the president with crimes, thanks to Justice Department guidance and in the interest of fairness, Mueller did not make the otherwise obvious jump from laying out the ways that Trump’s behavior met the three-prong test to actually stating that Trump obstructed justice.

During today’s House Judiciary Committee hearing, Democratic Representative Hakeem Jeffries sought to demonstrate the disconnect by walking Mueller through the three-prong test.

“Let me refer you to page 87 and 88 of volume 2 where you conclude the 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. Correct?” Jeffries asked.

“Yes,” Mueller said, confirming the obstructive act.

“Your report found on page 89, volume 2, that substantial evidence indicates that by June 17, the president knew his conduct was under investigation by a federal prosecutor who would present any evidence of federal crimes to a grand jury. True?” Jeffries asked.

“True,” Mueller said, confirming the nexus to an official proceeding.

Jeffries then moved on to the third element, corrupt intent, and Mueller once again effectively affirmed the point:

Jeffries: Is it fair to say the president viewed the special counsel’s investigation as adverse to his own interest?

Mueller: I think that generally is true.

Jeffries: The investigation found evidence, quote, “that the president knew that he should not have directed Don McGahn to fire the special counsel.” Correct?

Mueller: Where do you have that quote?

Jeffries: Page 90, volume 2. “There’s evidence that the president knew he should not have made those calls to McGahn,” closed quote.

Mueller: I see that. Yes, that’s accurate.

Mueller, seeing the trick, tried to cut it off. “Let me just say, if I might, I don’t subscribe necessarily to your—the way you analyzed that. I’m not saying it’s out of the ballpark, but I’m not supportive of that analytical charge,” he said.

During the next round of Democratic questions, Representative Ted Lieu executed a similar maneuver, and Mueller once again tried to put the cat back in the bag: “The only thing I want to add is going through the elements with you does not mean I subscribe to the—what you’re trying to prove through those elements.”

But by then, the point was made: Mueller himself had acknowledged all the ways that Trump’s behavior met all three prongs of the test for obstruction of justice. Under questioning from Lieu, Mueller also seemed to imply that he would have indicted Trump if not for Justice Department rules.