Serious tensions appear to be emerging between members of special counsel Robert Mueller’s team and Attorney General William Barr on obstruction of justice.
Mueller team members have told associates their evidence against Trump on obstruction is “alarming and significant,” per the Washington Post. Some of them feel Barr’s letter to Congress didn’t properly describe “derogatory information,” according to CNN. And one official told NBC News the report includes new material that’s not publicly known.
Yet Mueller’s report did not say whether or not Trump’s conduct qualified as criminal, and Barr then declared that, per his review of the evidence, it did not.
But the recent leaks suggest Mueller team members think Barr’s assessment was too benign — and that there’s more to the story.
One possibility of what’s going on is that Mueller’s team outlined an extensive pattern of troubling behavior from Trump that raised obstruction concerns, but that Barr concluded there was no one incident that qualified as slam dunk” obstruction of justice. And in fact, since the obstruction debate began legal experts have disagreed on the strength of the publicly known evidence — some told Vox the case was already damning, while others said it wasn’t quite there.
There could be other reasons for the disagreement; for instance, Barr could be taking an extremely generous view of Trump’s intent. We won’t know for sure until Mueller’s fuller report is released.
But to understand the increasingly contentious debate over whether the president obstructed justice, it’s worth reviewing what we already know Mueller investigated. From that, it’s easy to see how some prosecutors may have concluded there was an extremely obvious pattern of obstruction of justice from Trump — while others may have thought there was no one example strong enough to justify a charge.
1) Trump’s interactions with James Comey regarding “loyalty,” Michael Flynn, and the Russia probe
In the months before Trump fired James Comey, the then-FBI director documented a series of interactions with the new president that he found troubling.
- On January 27, 2017, Trump had Comey over for dinner at the White House. According to Comey’s memos, Trump asked for his “loyalty” and told him “I need loyalty.”
- On February 14, 2017, the day after National Security Adviser Michael Flynn resigned, Comey attended a briefing at the White House. When it was over, Trump made clear he wanted everyone but Comey to leave. According to Comey’s memos, Trump said he wanted to “talk about Mike Flynn,” and said, “I hope you can see your way clear to letting this go, to letting Flynn go.” Comey interpreted Trump to be referring to an FBI investigation into whether Flynn made false statements about his contacts with the Russian ambassador.
- On March 30, 2017, Trump called Comey. According to Comey’s memos, Trump complained about the FBI’s Russia investigation, calling it a cloud over his presidency, asking what could be done to lift the cloud. Trump also inquired whether Comey could publicly state that Trump himself wasn’t under investigation (which was, to be fair, something Comey had told Trump in private).
- On April 11, 2017, Trump called Comey. According to Comey’s memos, Trump complained about the Russia investigation and the “cloud” again, and again asked whether Comey could publicly state that Trump wasn’t personally under investigation.
All of these seem to be efforts from Trump to get the FBI director to do his bidding. The most legally problematic of them may be Trump’s request that Comey drop the Flynn investigation.
But some legal experts have argued that this could be characterized in a more defensible way: as a recommendation of prosecutorial discretion, from the head of the executive branch. Barr himself took this view in a memo he wrote last year, before his appointment as attorney general. Yes, recent norms dictate that a president shouldn’t get involved in investigations, but does that mean such a thing is illegal?
2) Trump’s decision to fire Comey, and whether it was an attempt to obstruct the Russia probe
The act that prompted Mueller’s appointment in the first place was Trump’s decision to fire Comey.
Although the White House claimed Comey was fired due to his handling of the Hillary Clinton email investigation, questions immediately arose about whether Trump’s true motivation was to try to obstruct the Russia investigation.
- The weekend before Trump fired Comey, the president had White House senior adviser Stephen Miller draft a letter to Comey blasting the Russia probe as “fabricated and politically motivated,” per the New York Times. The letter was never sent.
- On May 8, 2017, Trump called Sessions and Rosenstein to the White House to discuss firing Comey. Trump gave Rosenstein Miller’s letter, and Rosenstein said he would write his own memo.
- Later that day, Trump tweeted, “The Russia-Trump collusion story is a total hoax, when will this taxpayer funded charade end?”
- The next day, May 9, the White House announced Comey’s firing. In doing so, they released a memo from Rosenstein criticizing Comey’s handling of the Clinton email case, a letter from Sessions recommending Comey’s removal. They also released a letter from Trump making public that Comey had told him, “on three separate occasions, that I am not under investigation.”
- On May 10, 2017, Trump had a private meeting with Russia’s ambassador and foreign minister in the Oval Office. “I just fired the head of the FBI. He was crazy a real nut job,” Trump said, according to a document obtained by the Times. “I faced great pressure because of Russia. That’s taken off,” he added.
- On May 11, 2017, Trump told NBC’s Lester Holt that he was going to fire Comey regardless of Rosenstein’s recommendation. “And in fact when I decided to just do it I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story,’” he said. The statement appeared to directly tie the Russia investigation to Comey’s firing.
The evidence seems clear that displeasure with the Russia investigation was at least part of Trump’s motivation in firing Comey. The potential defense from the president’s team, though, is that this doesn’t necessarily show Trump had corrupt intent aimed at covering up wrongdoing. Rather, Trump could have fired Comey because he sincerely believed the Russia investigation was an unfair witch hunt. Beyond that, Barr’s 2018 memo also argued that the president has the power to fire the FBI director, so that this can’t be an obstructive action.
3) Trump’s pressures on Jeff Sessions and other officials
Beyond just Comey, Trump’s contacts with Justice Department and intelligence officials regarding the Russia probe also came under scrutiny. For instance, the special counsel wanted to ask Trump many questions about his treatment of Jeff Sessions.
- On March 1, 2017, the Washington Post reported that Sessions had a meeting with the Russian ambassador that he didn’t disclose during his Senate confirmation hearing. Public pressure on Sessions to recuse himself from the Russia investigation ensued.
- Around this time, Trump instructed White House counsel Don McGahn to stop Sessions from recusing himself, per the Times. But it didn’t work — on March 2, 2017, Sessions announced his recusal.
- Two days later, Trump told Sessions that he should reverse his decision during a private conversation at Mar-a-Lago, per the Times. (Sessions did not do so.)
- On May 17, 2017, when Trump got the news that Mueller had been appointed as special counsel, he called Sessions an “idiot” and said he should resign, per the Times.
- Sessions then submitted a resignation letter. Trump held onto it until May 31, 2017, but then returned it to Sessions — rejecting the resignation.
- But in late July 2017, Trump turned his attention to Sessions again. The president began mocking and berating his own attorney general in tweets and interviews, calling his recusal “unfair to the president” and complaining that Sessions wasn’t looking into “Hillary Clinton or Comey crimes.”
- Around the same time, Trump reportedly told White House chief of staff Reince Priebus to get him Sessions’s resignation. Priebus apparently failed to do so, and Trump ended up firing Priebus shortly afterward.
The special counsel may have been probing whether Trump was trying to force Sessions out so he could appoint a replacement who would fire Mueller. Of course, Trump eventually did fire Sessions — but much later, on November 7, 2018, and his replacement did not fire Mueller.
Mueller’s team also interviewed Trump’s top three intelligence officials about their interactions with him.
- In March 2017, after Comey confirmed that the FBI was investigating the Trump campaign’s Russia ties in congressional testimony, Trump reached out to CIA Director Mike Pompeo, Director of National Intelligence Dan Coats, and NSA Director Mike Rogers.
- Trump reportedly asked them for help supporting his public narrative of “no collusion” with Russia.
- Per one report, Trump also asked Coats to try to get Comey to stop investigating Flynn.
Finally, Mueller even investigated an attempt by Trump to fire ... Mueller himself.
- In June 2017, just weeks after Mueller’s appointment, Trump told McGahn that he wanted Mueller fired, according to the New York Times. However, McGahn did not carry out the order.
Again we have a pattern of behavior in which Trump expresses great displeasure about the Russia investigation to key officials, and in which he seems to be trying to get officials to bend to his will. But do these complaints and occasional (aborted) actions rise to the level of criminal obstruction of justice?
4) Trump’s interactions with Russia probe witnesses and defendants
Mueller has also dug into Trump’s interactions with potential Russia probe witnesses. He’s explored whether Trump dangled pardons to keep associates loyal, Trump’s involvement in crafting false or misleading statements issued by key figures, and Trump’s attacks on hostile witnesses.
- In April 2017, two months after Michael Flynn’s ouster as national security adviser, Flynn told associates that he had gotten “a message from the president to stay strong,” according to a report by Michael Isikoff.
- At some point in 2017, before Flynn and Paul Manafort had been charged by Mueller, Trump lawyer John Dowd was in contact with lawyers for both men — and “broached the idea” that they could be pardoned, per the New York Times.
- On July 8, 2017, Trump’s team strategized over how to respond to questions from the New York Times about a meeting Donald Trump Jr. had had with a Russian lawyer at Trump Tower in 2016. President Trump then “dictated” a statement for his son to release — but the statement was highly misleading, claiming the meeting was about Russian adoptions. In truth, Don Jr. agreed to the meeting in hopes of getting dirt on Hillary Clinton said to be coming from the Russian government.
- The next morning, White House communications director Hope Hicks had a call with the president and Mark Corallo, a spokesperson for Trump’s outside legal team. On the call, Hicks said that Don Jr.’s emails revealing the true purpose of the Trump Tower meeting “will never get out,” per Corallo. (They got out two days later.)
- In August 2017, Trump’s lawyer Michael Cohen sent a letter to congressional committees several multiple false statements about talks to build a Trump Tower in Moscow that had taken place during the campaign. Cohen has since testified about how Trump’s legal team reviewed his testimony in advance, and said he interpreted some statements by Trump as suggestions he should lie.
- Trump has also repeatedly attacked witnesses that could be hostile to him in the investigation, such as James Comey and Comey’s deputy Andrew McCabe. He has, for instance, demanded that the Justice Department investigate Comey.
Much depends on the facts here. It’s not clear, for instance, why Trump telling Don Jr. to give a false public statement would necessarily be considered obstruction — lying to law enforcement officials is a crime, but lying to the public isn’t.
We won’t know more until we see what Mueller found, but the debate may not go away even then
As you can tell, there’s ... a lot of potential evidence here. But does it add up to criminal obstruction of justice? Barr evidently maintains that it didn’t, and Mueller didn’t say one way or the other.
This may reflect a divide among legal experts that’s been evident for some time. Some have long viewed the public evidence against Trump as quite strong. “If Trump exercises his power — even his lawful power — with a corrupt motive of interfering with an investigation, that’s obstruction,” Lisa Kern Griffin, an expert on criminal law at Duke University, told my colleague Zack Beauchamp in January 2018. “The attempt is sufficient, and it seems to be a matter of public record already.”
But other experts disagreed. Some pointed to the president’s unique role (as Barr did in his memo). Others maintained that Trump’s known acts simply weren’t as clear-cut examples of obstruction as, say, urging witnesses to lie under oath or destroying evidence. “This is not yet the type of case we’d ordinarily see an [obstruction of justice] indictment come out of,” Laurie Levenson, a former prosecutor and law professor at Loyola University, told me last year.
Another potential clue in Barr’s letter is what he writes about the president’s intent. “Corrupt intent” is one of the three requirements Barr says must be proven for an obstruction offense — and, Barr says that in his view, the failure to establish an underlying crime from Trump related to Russian interference suggests Trump’s intent with the many above actions may not have been corrupt. It’s not clear whether Mueller shares this assessment, though recent reports suggest some on his team don’t have such a rosy view.
There’s much we still don’t know about what Mueller found and how both he and Barr reached their respective conclusions. But with Barr saying he expects to release a redacted version of Mueller’s report by mid-April, we’ll know more soon enough — and the American people will get to make up their own minds about whether the president is an obstructive crook.