Over to You, Congress

President Donald Trump is scared. Fear stalked his face as beads of sweat formed when he talked to reporters on the White House lawn Thursday morning, the day after special counsel Robert Mueller spoke. Fear also animated Trump’s tweets in which he  wrote, in an admission of Russian assistance, “I had nothing to do with Russia helping me to get elected.” In another tweet, the president went from his previous “total exoneration” to “there was insufficient evidence” to bring charges against him. 

Since the president does not read, it is more than probable that he is only familiar with Attorney General William Barr’s CliffNotes version of Mueller’s exhaustive 448-page report on Russian interference in the 2016 election and Trump’s subsequent attempts to obstruct the investigation of Moscow’s meddling in American politics. He may not have even read Barr’s brief and dissembling synopsis of Mueller’s carefully worded report. Trump may have obtained his opinion of Mueller’s work the way he gets most of his information — from Fox News.

Special counsel Robert Mueller

Of course, most Americans have not read the report either, and many may be confused by the conflicting coverage or influenced by the Trump administration’s spin. Mueller’s brief — less than 10-minute — appearance before cameras serves the purpose of bringing the public’s attention to the key conclusions of his report. Though he is reluctant to do so, Mueller must appear before the appropriate congressional committees to reinforce the report’s findings. Even if he merely reads critical sections, his testimony would go a long way toward shaping public opinion.

Mueller is a careful man, and I assume he chose his words carefully in his public statement, deviating from the text of the report in only two instances. But, those two deviations — pertaining to Trump’s potential criminal behavior — are important to understand what Mueller wants to happen next. “A president cannot be charged with a federal crime while he is in office,” Mueller said Wednesday. “That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited…. Charging the president with a crime was therefore not an option that we could consider.” 

This is stronger language than Mueller used in his lengthy report, where Mueller deferred only to the opinion of the Office of Legal Counsel, a branch of the Justice Department. Because Mueller could not indict Trump — a sitting president — and,  therefore, could not render an opinion on his possible guilt, there is only one remedy: “[T]he Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” Nothing could be clearer: Mueller is telling Congress to do its job and begin impeachment proceedings. Fairness, Mueller says, precluded any accusations of presidential wrongdoing since Trump would not be able to clear his name in court. Prevented from ruling on Trump’s guilt, Mueller still repeated an important conclusion from his report: “If we had confidence that the president clearly did not commit a crime, we would have said so.”

In the report, that sentiment is rendered this way: “[I]f we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state.” The use of the word “obstruction” leads to the second point about the difference between the report and Wednesday’s statement. In the latter, Mueller said, “When the subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.” Notice the introductory word: Mueller did not say “if,” a conditional conjunction, but “when,” a definitive word indicating that an event has occurred or will occur. Trump was the subject of an investigation of obstruction, and in the special counsel’s description of the legal importance of obstruction, he chose to introduce the discussion with “when,” not “if.”

Contrary to Barr’s misleading statements about the Mueller report and the dissembling of Trump and his sycophants, it bears repeating in this context that a defendant can commit obstruction of justice even if he or she has not committed an underlying crime. (A crucial point in this instance since Mueller concluded that there was insufficient evidence to reach a judgment on whether the Trump campaign conspired with Russians.) If the presence of an underlying crime were a precondition for a charge of obstruction, then every accused person would use any means necessary to obstruct justice to prevent a charge for the underlying crime. But, the American justice system does not work that way. In fact, one federal court recently ruled that a defendant could be convicted of obstruction “even if [his] primary motivation was to extricate the sister of his childhood friend from a troubled situation.” Another court held that a defendant committed obstruction when he tried to protect a friend from a criminal charge.  

Questions of law often involve nuance and subtlety, traits beyond the understanding of President Trump. He may not grasp the legal arguments, but he knows he is in legal jeopardy, which is why he is scared. He has lost a number of recent court cases involving his refusal to turn over personal financial documents to Congress. The interest of lawmakers in those documents and the refusal of key Trump aides involved in possible obstruction of justice to testify before Congress will be further tested in the courts, with Trump and his allies likely to lose those cases as well. Delay is his only alternative, and that works for only so long.

The noose is tightening. President Trump does not have to comprehend the intricacies of the law to realize the danger he is in. He knows what he did. The rest of us know only some of it, which is why Congress must begin to impeach — the only way the public will know fully the extent of Trump’s corruption. No less an authority than Robert Mueller believes it is time to impeach.

Posted May 31, 2019

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