Special Counsel Robert Mueller’s report is 448 pages long, full of shocking conduct and detail that has prompted non-stop discussion since it was released last week. But one thing seems indisputable from our perspective as former federal prosecutors looking at the evidence laid out by the report: If Donald Trump were not now president he would have been indicted on multiple counts of obstruction of justice. And that case would be as strong, if not stronger, than many we saw working in New York and Chicago, respectively.
Justice Department policy prohibits the prosecution of a president while in office, but nothing forbids one from being charged after leaving the White House. The Mueller Report even noted one reason to investigate the president was to preserve evidence for possible future use even though Trump can’t be charged now. And Mueller collected a stunning array of evidence that clearly shows that from 2017 until 2019, Trump engaged in a persistent pattern to try to end, or at least limit the scope of, investigations surrounding him and his family.
With so much to consider, it’s helpful to focus on four areas in particular where there are multiple reliable witnesses whose testimony corroborates one another, where some of the acts simply can’t be disputed because they occurred in plain sight, and where the evidence of corrupt intent and connection to pending proceedings are clear: (1) Trump’s efforts to fire Mueller, (2) Trump’s order to falsify evidence about that effort, (3) Trump’s efforts to limit the scope of Mueller’s investigation to exclude his conduct, and (4) Trump’s efforts to try and prevent witnesses from cooperating with investigators probing him and his campaign. While this may bear some passing similarity to mob-related and other obstruction of justice cases we worked on and saw as federal prosecutors, the conduct is more shocking and serious given that Trump is the president of the United States.
Perhaps the most shocking conduct—which would be the centerpiece of any criminal prosecution—was Trump’s repeated attempts to terminate Mueller. Despite being told by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext to try and get rid of Mueller. And then, when these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story”—i.e., to get him to lie, going so far as telling McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination. (McGahn refused these orders and threatened to resign.)
Another central piece of a criminal case for obstruction against Trump are his repeated efforts to curtail at least the scope of the special counsel investigation. Trump did this in two main ways.
First, by repeatedly pressuring then-Attorney General Jeff Sessions to reverse his decision to recuse himself from the investigation so that he could control it and ensure it did not ensnare Trump. Trump said he wanted an attorney general who would “protect” him and repeatedly tried to push Sessions to do so. When that failed, Trump directed then-White House Chief of Staff Reince Priebus to fire Sessions and Priebus refused.
Second, after Trump had been told by McGahn that he could not contact Sessions himself to discuss the investigation, Trump went outside the White House to send a message. He told former campaign manager and private citizen Corey Lewandowski to pass a message to Sessions to order Mueller to limit his investigation to future elections. Lewandowski tried and failed to contact Sessions in private. After a second meeting with Trump, Lewandowski passed Trump’s message to senior White House official Rick Dearborn, who Lewandowski thought would be a better messenger due to his relationship with Sessions. Dearborn did not pass along Trump’s message.
All of this conduct—trying to control and impede the investigation against him through use of his position of authority over others—is reminiscent of conduct we have seen charged against other public officials and people in powerful positions.
Some commentators noted that Trump was “saved” by the fact most of the subordinates whom Trump directed to carry out acts of obstruction of justice did not comply, like McGahn. Not so. Even uncompleted acts of obstruction, like those described above pertaining to trying to control Mueller and Sessions, are criminal because the statute criminalizes the endeavor, not the completed act. Most criminals are just not that good at obstructing.