Special Counsel Robert Mueller’s team found no evidence of a conspiracy between Russia and the Trump campaign to rig the 2016 presidential election.
But legal experts said Thursday that the highly anticipated Mueller report doesn’t shut the door on the question of whether President Trump obstructed the special counsel’s investigation into Russian meddling.
“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Nancy Gertner, a retired federal judge who teaches at Harvard Law School, noted in an e-mail that the federal obstruction law covers a wide array of actions.
“The statute talks not only about actual obstruction but also endeavor to obstruct,” Gertner wrote in an e-mail. “The report suggests that Trump ‘endeavored’ to obstruct but those around him would not comply. And ‘endeavor’ has to come with a corrupt intent. The AG seems to think that if Trump was not conspiring with the Russians, there was no corrupt intent. But the purpose of his attempted obstruction didn’t have to be to stop a Russian conspiracy investigation.”
Gertner added that corrupt intent is “not well defined. It means an improper motive of accomplishing an unlawful result. He could try to stop the investigation because a) it delegitimized his election, b) it embarrassed him and his family; c) he didn’t want to expose family members. In fact, in my view, Barr’s characterization — that the president was angry and frustrated by what he saw as an illegitimate investigation when it was entirely legitimate given the facts known — could amount to corrupt intent.”
Monique D. Pressley, a prominent attorney and legal commentator based in Washington D.C., said via e-mail that the report leaves the door open for further inquiry.
“Though the report offers many incidents of possible obstruction and specifically does not rule out the president’s culpability . . . Mueller’s team declined to do the deeper dive necessary to answer and analyze fundamental questions [regarding] the President’s intent that would be necessary to bring charges,” said Pressley, whose former clients have included Bill Cosby. “They stated plainly their rationale—they intended to follow DOJ guidance [regarding] not charging a sitting President with a crime, so it would have been a wasted exercise to go further. However, they also—with intention—analyzed the law regarding Congress’ ability to charge POTUS with obstruction and left a road map for them to do so, were the members so inclined.”
Mark J. Geragos, a well-known defense lawyer in Los Angeles whose former clients have included Susan McDougal, a key figure in the Whitewater investigation whom Bill Clinton pardoned, had a slightly different take on the Mueller report.
“I wouldn’t characterize it as a road map as much as . . . spotting and identifying the problems with bringing an action,” Geragos said in an e-mail.
He described the report as “a very nuanced and measured constitutional legal analysis. It properly balances the Separation of powers and the Special Counsel mandate.”
Trump, for his part, said during an address Thursday at the Wounded Warrior Project Soldier Ride, “This should never happen to another President again,” according to a White House transcript. “This hoax — it should never happen to another President again. Thank you.”
He also tweeted, “No Collusion - No Obstruction!”
That view was seconded Thursday by Tom Fitton, president of Judicial Watch, a conservative advocacy group.
“Reading it now!” Fitton tweeted about the Mueller Report. “Based on initial review — looks dishonest.”