Story Analyzer Dashboard

  Mueller Report Volume 2 Factual Results of Obstruction Investigation

      L. Overarching Factual Issues
L. Overarching Factual Issues

Although this report does not contain a traditional prosecution decision or declination decision, the evidence supports several general conclusions relevant to analysis of the facts concerning the President 's course of conduct.

Three features of this case render it atypical compared to the heartland obstruction-of-justice prosecutions brought by the Department of Justice.

First, the conduct involved actions by the President.
Some of the conduct did not implicate the President 's constitutional authority and raises garden-variety obstruction-of-justice issues. Other events we investigated, however, drew upon the President 's Article II authority, which raised constitutional issues that we address in Volume II, Section III.B, infra. A factual analysis of that conduct would have to take into account both that the President 's acts were facially lawful and that his position as head of the Executive Branch provides him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime.
Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g., United States v. Willoughby, 860 F. 2d 15, 24( 2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F. 3d 558, 591( 2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F. 3d 790, 798( 6th Cir. 2017)( stating, in applying the obstruction sentencing guideline, that" obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime''). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.

In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.
But the evidence does point to a range of other possible personal motives animating the President 's conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks 's release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.

Third, many of the President 's acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view.
While it may be more difficult to establish that public-facing acts were motivated by a corrupt intent, the President 's power to influence actions, persons, and events is enhanced by his unique ability to attract attention through use of mass communications. And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system 's integrity is equally threatened.

Although the events we investigated involved discrete acts- e.g., the President 's statement to Comey about the Flynn investigation, his termination of Comey, and his efforts to remove the Special Counsel- it is important to view the President 's pattern of conduct as a whole. That pattern sheds light on the nature of the President 's acts and the inferences that can be drawn about his intent. a. Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General 's recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance. For example, the President 's direction to McGahn to have the Special Counsel removed was followed almost immediately by his direction to Lewandowski to tell the Attorney General to limit the scope of the Russia investigation to prospective election-interference only-a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.

The President ' s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.
Comey did not end the investigation of Flynn, which ultimately resulted in Flynn 's prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President 's order. Lewandowski and Dearborn did not deliver the President 's message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President 's direction to have the Special Counsel removed, despite the President 's multiple demands that he do so. Consistent with that pattern, the evidence we obtained would not support potential obstruction charges against the President 's aides and associates beyond those already filed.

In considering the full scope of the conduct we investigated, the President 's actions can be divided into two distinct phases reflecting a possible shift in the President 's motives. In the first phase, before the President fired Comey, the President had been assured that the FBI had not opened an investigation of him personally. The President deemed it critically important to make public that he was not under investigation, and he included that information in his termination letter to Comey after other efforts to have that information disclosed were unsuccessful.

Soon after he fired Comey, however, the President became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct.
That awareness marked a significant change in the President 's conduct and the start of a second phase of action. The President launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation. For instance, the President attempted to remove the Special Counsel; he sought to have Attorney General Sessions unrecuse himself and limit the investigation; he sought to prevent public disclosure of information about the June 9, 2016 meeting between Russians and campaign officials; and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government. Judgments about the nature of the President 's motives during each phase would be informed by the totality of the evidence.
Highlighted Information
Narrative Web
Times Cloud
Places Cloud
Subjects Cloud
Actions Cloud
Objects Cloud
Contexts Cloud