The 2012 Republican presidential nominee added, “I think, in part — one of the things that is difficult in order to make a case for obstruction of justice or impeachment is whether or not there was intent. And when there’s not an underlying crime, I think it’s difficult to put together an effective case to prosecute for those crimes.” So Romney is merely “troubled by it” and found it “very disappointing, for a number of reasons.”
More than 900 prosecutors found there to be sufficient evidence that, absent the Office of Legal Counsel memo opining that a sitting president cannot be indicted, they would have found sufficient evidence to indict.
We have evidence that special counsel Robert S. Mueller III placed into 10 "episodes of concern." As the Lawfare blog explains, “Each episode includes a detailed set of factual findings and then analyzes how the evidence maps onto the criminal charge of obstruction, which requires (1) an obstructive act; (2) a nexus with an official proceeding; and (3) a corrupt intent.” The Lawfare team goes through all 10 categories, finding:
The critical point is that in six of these episodes, the special counsel’s office suggests that all of the elements of obstruction are satisfied: Trump’s conduct regarding the investigation into [former national security adviser] Michael Flynn, his firing of [FBI Director James B.] Comey, his efforts to remove Mueller and then to curtail Mueller’s investigation, his campaign to have Sessions take back control over the investigation and an order he gave to White House Counsel [Donald] McGahn to both lie to the press about [President] Trump’s past attempt to fire Mueller and create a false record “for our files.” In the cases of Comey’s firing, Trump’s effort to fire Mueller and then push McGahn to lie about it, and Trump’s effort to curtail the scope of the investigation, Mueller describes “substantial” evidence that Trump intended to obstruct justice. Only in one instance — concerning Trump’s effort to prevent the release of emails regarding the Trump Tower meeting — does the special counsel seem to feel that none of the three elements of the obstruction offense were met.
Romney seems most concerned about the element of intent. The senator is obliged to explain, then, why he finds an absence of intent when Mueller did, as the special counsel explained in great detail.
Let’s take President Trump’s efforts to remove the special counsel, for example. Mueller specifically addresses the issue of intent: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct — and, most immediately, to reports that the President was being investigated for potential obstruction of justice.” The report goes on:
On June 13, 2017, the Acting Attorney General testified before Congress that no good cause for removing the Special Counsel existed, and the President dictated a press statement to [White House press secretary Sarah] Sanders saying he had no intention of firing the Special Counsel. But the next day, the media reported that the President was under investigation for obstruction of justice and the Special Counsel was interviewing witnesses about events related to possible obstruction — spurring the President to write critical tweets about the Special Counsel’s investigation. The President called McGahn at home that night and then called him on Saturday from Camp David. The evidence accordingly indicates that news that an obstruction investigation had been opened is what led the President to call McGahn to have the Special Counsel terminated.There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office — and McGahn himself — could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in Volume II, Section II.I, infra. Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.
I don’t know what report Romney read, but he should explain why he disagrees with the detailed findings. (Romney’s office did not respond to a request for comment. I will update if I hear back.)
Likewise, when it comes to persuading then-Attorney General Jeff Sessions to limit the inquiry, Mueller found, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” It is worth again quoting the report at length:
The timing and circumstances of the President’s actions support the conclusion that he sought that result. The President’s initial direction that Sessions should limit the Special Counsel’s investigation came just two days after the President had ordered McGahn to have the Special Counsel removed, which itself followed public reports that the President was personally under investigation for obstruction of justice. The sequence of those events raises an inference that after seeking to terminate the Special Counsel, the President sought to exclude his and his campaign’s conduct from the investigation’s scope. The President raised the matter with [former Trump campaign manager Corey] Lewandowski again on July 19, 2017, just days after emails and information about the June 9, 2016 meeting between Russians and senior campaign officials had been publicly disclosed, generating substantial media coverage and investigative interest.The manner in which the President acted provides additional evidence of his intent. Rather than rely on official channels, the President met with Lewandowski alone in the Oval Office. The President selected a loyal “devotee” outside the White House to deliver the message, supporting an inference that he was working outside White House channels, including McGahn, who had previously resisted contacting the Department of Justice about the Special Counsel. The President also did not contact the Acting Attorney General, who had just testified publicly that there was no cause to remove the Special Counsel. Instead, the President tried to use Sessions to restrict and redirect the Special Counsel’s investigation when Sessions was recused and could not properly take any action on it.The July 19, 2017 events provide further evidence of the President’s intent. The President followed up with Lewandowski in a separate one-on-one meeting one month after he first dictated the message for Sessions, demonstrating he still sought to pursue the request. And just hours after Lewandowski assured the President that the message would soon be delivered to Sessions, the President gave an unplanned interview to the New York Times in which he publicly attacked Sessions and raised questions about his job security. Four days later, on July 22, 2017, the President directed [White House Chief of Staff Reince] Priebus to obtain Sessions’s resignation. That evidence could raise an inference that the President wanted Sessions to realize that his job might be on the line as he evaluated whether to comply with the President’s direction that Sessions publicly announce that, notwithstanding his recusal, he was going to confine the Special Counsel’s investigation to future election interference.
How is this not evidence of intent?
Those are but two of the six areas in which Mueller found that Trump met all three elements of an obstruction. Romney’s explanation that there is insufficient evidence of intent doesn’t hold up. Romney is an intelligent man fully capable of comprehending Mueller’s work; he is however intent on minimizing conflict with Trump. From all appearances, his explanation is a thin excuse for not recognizing the obvious.
The senator from Utah should find his spine and acknowledge the obvious. He then needs to say why he still disfavors impeachment.
UPDATE: A Romney spokesperson points to language in which Mueller acknowledges there was no underlying crime. However, Mueller specifically said this was not determinative — in the very passage that Romney’s spokesperson cites — and that the lack of an underlying crime merely requires consideration of intent and other motives. As cited above, Mueller finds ample evidence of Trump’s intent to obstruct, so we are left baffled as to Romney’s complaint.