Despite Attorney General William Barr’s best efforts to protect President Trump by declaring the matter closed, the 400-page Mueller report is a referral and roadmap for a congressional impeachment investigation. While finding insufficient evidence to criminally prosecute any Trump campaign officials for conspiring with the Russian government, the report concludes that the Russian government unlawfully interfered with the 2016 election in “sweeping and systemic fashion,” identifies numerous links between the Trump campaign and the Russians, and demonstrates beyond question that Trump and his campaign eagerly accepted and used to their advantage the unlawful Russian assistance. The report then describes in granular detail the numerous ways that Trump sought to obstruct the investigation over the first two years of his administration, including directing his subordinates to lie, conceal, and even fabricate evidence, and explains why each legal defense offered by Trump’s lawyers is groundless. The presidential lawlessness and corruption revealed in the report is so egregious that it made Republican Senator Mitt Romney “sickened and appalled.”
Much of the media coverage of the report has suggested that Trump’s aides who failed to carry out his directives thwarted his efforts to obstruct. Lack of success is of course no defense to an obstruction charge, but this focus also overlooks some of the most serious and impactful obstructive conduct. For example, Paul Manafort, Trump’s campaign manager, had multiple communications with the Russians concerning the campaign and would have been in a position to provide information about the June 2016 meeting he, Donald Trump Jr., and Jared Kushner, had with Russian representatives. He also could have explained the purpose and circumstances of his meeting with a Russian representative and his sharing of internal Trump campaign polling data with the Russians. Not surprisingly, Manafort was a primary focus of Trump’s obstructive efforts, including publicly praising Manafort for refusing to “flip,” and repeatedly suggesting that he might pardon Manafort — conduct indicating, according to the Mueller report, that Trump “intended to encourage Manafort not to cooperate.” Manafort apparently got the message: As both the special counsel and the US District Court concluded, after Trump’s reassurances, Manafort breached his cooperation agreement by lying about his communications concerning the campaign polling data.
Any experienced prosecutor would acknowledge that the truthful cooperation of a central figure like Manafort could potentially have provided the additional testimony and evidence to prove the existence of a criminal conspiracy or other offenses involving Team Trump and the Russians assisting their electoral efforts. As the special counsel concluded, the lies of Manafort and other campaign officials “materially impaired the investigation of Russian election interference.”
Trump’s most impactful act of obstruction only came to fruition after the Mueller report was complete, with Barr’s whitewashing of it. The report’s summary of Trump’s obstructive efforts to take control of the investigation by having Attorney General Jeff Sessions “unrecuse” himself or resign concluded on Nov. 7, 2018, the day after the midterm elections, when Trump finally forced Sessions to resign. But that wasn’t the end of Trump’s obstruction; it was the beginning of his most successful obstructive effort to date.
Having successfully ousted Sessions, Trump nominated Barr as attorney general. Barr had already made clear publicly, and in a June 2018 memo submitted privately to the Justice Department and Trump lawyers, that he had prejudged the Mueller obstruction investigation as “asinine” and “fatally misconceived.” On Feb. 14, 2019, over the objections of 45 senators amid concerns that Barr could not be independent in overseeing the Mueller investigation given his previously stated positions, the Senate confirmed Barr as attorney general. On March 22, Barr announced that the Mueller investigation was over and that Mueller had submitted his report to him that day. Rather than provide the report to Congress, however, Barr two days later issued a four-page summary purporting to clear Trump of any wrongdoing.
The Mueller report (even as redacted by Barr), which Barr finally released last week, clearly reveals that Barr’s four-page summary was misleading and inaccurate. First, the Barr summary states that “the special counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” suggesting that Trump and his associates rejected those offers. In fact, the Mueller report describes in detail the ways in which Trump and his campaign not only accepted, but also encouraged, and eagerly took advantage of, Russian assistance, and then repeatedly lied about and concealed it.
Second, the Barr summary contains this remarkably inaccurate and misleading sentence: “The special counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the attorney general to determine whether the conduct described in the report constitutes a crime,” followed by Barr’s personal conclusion — unsupported by any analysis — that Trump did not obstruct justice. Contrary to Barr’s summary, the Mueller report did reach legal conclusions, including specifically rejecting each and every legal argument made by Trump’s lawyers on the issue of obstruction. Nor did the special counsel “leave it to the Attorney General to determine” whether Trump had committed obstruction. To the contrary, he refrained from making the ultimate determination whether Trump had committed obstruction because he believed it would be inappropriate for him — and by clear implication, the attorney general — to make such a determination in light of the Justice Department’s policy against prosecuting a sitting president. Instead, as indicated on the first page of the special counsel’s report on obstruction, the Special Counsel left that question to Congress to address through the “constitutional process for addressing presidential misconduct” — impeachment proceedings.
Will Congress heed that call, or will it reward Trump’s obstruction by giving Barr the last word? Will patriotic duty and the growing calls from House members and their constituents compel House leaders to begin an impeachment investigation or will political caution and cowardice prevail? The rule of the law, our democracy, and the legitimacy of the presidency and Congress itself hang in the balance.
Ben Clements is a former federal prosecutor, former chief legal counsel to the governor of Massachusetts, and the chairman of the board of Free Speech for People. Ron Fein is the legal director of Free Speech for People. They are coauthors, with John Bonifaz, of “The Constitution Demands It: The Case for the Impeachment of Donald Trump.”