Special counsel's report says investigators struggled with whether Trump committed crime of obstruction - The Washington Post

"By Devlin Barrett, www.washingtonpost.comView OriginalApril 18th, 2019

The report from special counsel Robert S. Mueller III lays out in alarming detail abundant evidence against President Trump, finding 10 “episodes” of potential obstruction of justice but ultimately concluding it was not Mueller’s role to determine whether the commander in chief broke the law.



Submitted to Congress on Thursday, the 448-page document alternates between jarring scenes of presidential scheming and dense legal analysis, and it marks the onset of a new phase of the Trump administration in which congressional Democrats must decide what, if anything, to do with Mueller’s evidence. The report suggests — though never explicitly states — that Congress, not the Justice Department, should assume the role of prosecutor when the person who may be prosecuted is the president.



“The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law,” Mueller’s team wrote.



Trump once feared Mueller could destroy his presidency, but the special counsel may instead define it. By releasing a thick catalogue of misconduct and mendacity that, if not criminal, is deeply unflattering, Mueller’s report may mean long-term political problems for a president seeking reelection next year.



Still, Trump’s electoral base has not been swayed by such stories in the past, and he has already claimed victory on the investigation’s bottom line: no conspiracy with Russia, no obstruction of justice.



Since Mueller ended his investigation last month, a central question facing the Justice Department has been why Mueller’s team did not reach a conclusion about whether the president obstructed justice. The issue was complicated, the report said, by two key factors — the fact that, under department practice, a sitting president cannot be charged with a crime, and that a president has a great deal of constitutional authority to give orders to other government employees.



Trump submitted written answers to investigators. The special counsel’s office considered them “inadequate” but did not press for an interview with him because doing so would cause a “substantial delay,” the report says.



The report said investigators felt they had “sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.”



Trump’s legal team declared Mueller’s report “a total victory” for the president. It “underscores what we have argued from the very beginning — there was no collusion — there was no obstruction,” they said.



In their statement, Trump’s lawyers also attacked former leaders at the FBI for opening “a biased, political attack against the President — turning one of our foundational legal standards on its head.”



Trump said little publicly about the report’s release. At an event Thursday, he indicated he was having a “good day,” and adding that “this should never happen to another president again, this hoax.” Ahead of the report’s release, the president lobbed a familiar attack on the investigation. “PRESIDENTIAL HARASSMENT!” he tweeted. “The Greatest Political Hoax of all time! Crimes were committed by Crooked, Dirty Cops and DNC/The Democrats.”



If Mueller’s report was a victory for the president, it was an ugly one. Investigators paint a portrait of a president who believes the Justice Department and the FBI should answer to his orders, even when it comes to criminal investigations.



During a meeting in which the president complained about then-Attorney General Jeff Sessions’s decision to recuse himself from the Russia investigation, Trump insisted that past attorneys general had been more obedient to their presidents, referring to President John F. Kennedy and his brother, Robert, as well as the Obama administration.



“You’re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?” Trump told senior White House staffers Stephen K. Bannon and Donald McGahn, according to the report.



“Bannon recalled that the President was as mad as Bannon had ever seen him and that he screamed at McGahn about how weak Sessions was,” the report said.



Repeatedly, it appears Trump may have been saved from more serious legal jeopardy because his own staffers refused to carry out orders they thought were problematic or potentially illegal.



For instance, in the early days of the administration, when the president was facing growing questions concerning then-national security adviser Michael Flynn’s conversations about sanctions with a Russian ambassador, the president ordered another aide, K.T. McFarland, to write an email saying the president did not direct those conversations. She decided not to do so, unsure if that was true and fearing it might be improper.



“Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge,’ ” the report said.



The report also recounts a remarkable moment in May 2017 when Sessions told Trump that Mueller had just been appointed special counsel. Trump slumped back in his chair, according to notes from Jody Hunt, Sessions’s then-chief of staff. “Oh my God, this is terrible. This is the end of my presidency. I’m fucked,” Trump said. The president further laid into Sessions for his recusal, saying Sessions had let him down.



“Everyone tells me if you get one of these independent counsels it ruins your presidency,” Trump said, according to Hunt’s notes. “It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.”



The special counsel’s report on possible coordination between the Trump campaign and Russians to interfere in the 2016 election is extremely detailed with only modest redactions — painting a starkly different picture for Trump than Attorney General William P. Barr has offered, and revealing new details about interactions between Russians and Trump associates.



Mueller’s team wrote that though their investigation “did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities,” that assertion was informed by the fact that coordination requires more than two parties “taking actions that were informed by or responsive to the other’s actions or interests.”



And Mueller made it clear: Russia wanted to help the Trump campaign, and the Trump campaign was willing to take it.



“Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” Mueller’s team wrote.



The report detailed a timeline of contacts between the Trump campaign and those with Russian ties — much of it already known, but some of it new.



For example, Mueller’s team asserted that in August 2016, Konstantin Kilimnik, whom the FBI has assessed as having ties to Russian intelligence, met with Paul Manafort, Trump’s campaign chairman, “to deliver in person a peace plan for Ukraine that Manafort acknowledged to the Special Counsel’s Office was a ‘backdoor’ way for Russia to control part of eastern Ukraine.”



The special counsel wrote that both men believed the plan would require candidate Trump’s “assent to succeed (were he elected President).”



“They also discussed the status of the Trump Campaign and Manafort’s strategy for winning Democratic votes in Midwestern states,” the special counsel wrote. “Months before that meeting, Manafort had caused internal polling data to be shared with Kilimnik, and the sharing continued for some period of time after their August meeting.”



Mueller’s report suggests his obstruction of justice investigation was heavily informed by an opinion from the Justice Department’s Office of Legal Counsel (OLC) that says a sitting president cannot be indicted — a conclusion Mueller’s team accepted.



“And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct,” Mueller’s team wrote.



That decision, though, seemed to leave investigators in a strange spot. Mueller’s team wrote that they “determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” They seemed to shy from producing even an internal document that alleged the president had done something wrong — deciding, essentially, that they wouldn’t decide.



“Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report’s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against determining ‘that the person’s conduct constitutes a federal offense.’ ”



Barr said during a news conference Thursday that Justice Department officials asked Mueller “about the OLC opinion and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion.”



“He made it very clear, several times, that he was not taking a position — he was not saying but for the OLC opinion he would have found a crime,” Barr said.



Mueller did not attend the news conference.



Barr addressed the media before releasing the report. He made repeated references to “collusion,” echoing language the president has stressed even though it is not a relevant legal term.



Barr also described how the nation’s top law enforcement officials wrestled with investigating Trump for possible obstruction of justice. He and Deputy Attorney General Rod J. Rosenstein “disagreed with some of the special counsel’s legal theories and felt that some of the episodes did not amount to obstruction as a matter of law” but that they accepted the special counsel’s “legal framework” as they analyzed the case, Barr said.



It was the first official acknowledgment of differing views inside the Justice Department about how to investigate the president.



Barr also spoke about the president’s state of mind as Trump responded to the unfolding investigation. “As the Special Counsel’s report acknowledges, there is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” he said.



The Mueller report is considered so politically explosive that even the Justice Department’s rollout plan sparked a firestorm, with Democrats suggesting that the attorney general was trying to improperly color Mueller’s findings before the public could read them.



Prompted by a reporter, Barr responded to a call earlier Thursday from the top two Democrats in Congress to have Mueller appear before House and Senate committees. “I have no objection to Bob Mueller personally testifying,” the attorney general said.



In a letter, House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) said they wanted testimony “as soon as possible” from Mueller. And after Barr’s news conference, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) released a letter to the special counsel seeking an appearance before his panel “no later than May 23.”



Congressional Democrats have vowed to fight to get the entire report, without redactions, as well as the underlying investigative documents Mueller gathered.



The report has been the subject of heated debate since Barr notified Congress last month that Mueller had completed his work.



Barr told lawmakers he needed time to redact sensitive information before it could be made public, including any grand jury material as well as details whose public release could harm ongoing investigations.



Barr also said he would review the document to redact information that would “potentially compromise sources and methods” in intelligence collection and anything that would “unduly infringe on the personal privacy and reputational interests of peripheral third parties.”



That language suggests Barr wants to keep secret any derogatory information gathered by investigators about figures who ended up not being central to Mueller’s investigation.



Barr notified Congress after the report’s release that senior members of each party would get a chance to review a less-redacted version next week. The invitation was extended to the leaders of congressional committees and one staffer each. Democrats immediately panned the offer, though, calling it a “non-starter.”



Greg Miller, Spencer S. Hsu, Karoun Demirjian, Ellen Nakashima, Philip Rucker, John Wagner and Felicia Sonmez contributed to this report."



Special counsel's report says investigators struggled with whether Trump committed crime of obstruction - The Washington Post