It’s a far cry from independent counsel Kenneth Starr’s report on Bill Clinton two decades ago. In that document, Starr laid out 11 impeachable offenses and directly accused Clinton of lying under oath (five offenses) and obstruction of justice (five offenses).
But if you look closely at Mueller’s words, there’s an argument to be made that he is effectively accusing Trump of at least four and possibly five obstruction of justice offenses. Or, to be more circumspect, you could say he detailed four to five acts that would meet the legal threshold to be charged as crimes — if Trump weren’t president of the United States.
Toward the top of Volume II of Mueller’s report, Mueller notes the three criteria used to determine obstruction of justice:
- “an obstructive act”
- “a nexus between the obstructive act and an official proceeding, and ...”
- “a corrupt intent”
Basically, it’s not enough to just prove someone obstructed something; you also need to prove that the action could actually impact the legal process and that the person had such a nefarious intent.
The Mueller report details 10 areas in which Trump could be viewed as obstructing justice and then analyzes each of them for these three criteria. It does not directly say whether each criterion has been satisfied, but it’s possible to deduce from Mueller’s words whether he believes the evidence supports that conclusion.
Some folks have decoded these sections and created charts laying out which of the 10 areas they see ticking all three boxes. Here’s Lawfare’s Quinta Jurecic, who uses dark red for areas in which she sees Mueller saying the criteria have been satisfied with substantial evidence (so basically, the areas that have three dark red boxes would be the most chargeable offenses):
And here’s a similar chart from lawyer Richard Hoeg, who uses green to signify the criteria that have been satisfied:
As you can see, there are some differences in the charts. Part of that is because Hoeg used a binary, “Yes”-or-“No” system, while Jurecic used a more nuanced one. Jurecic also separates out the last two areas, which are multifaceted and are also broken into pieces by Mueller’s report.
Another reason for that is this is a subjective exercise. Jurecic’s analysis is worth a read, but I decided to go through all 10 analysis sections to decide for myself. And I found that, in five of the 10 areas, Mueller seems to believe that all three criteria to charge a crime are supported by evidence.
1. Trump’s conduct toward Paul Manafort’s cooperation
Obstructive act: “With respect to Manafort, there is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government.”
Nexus: “The President’s conduct towards Manafort was directly connected to the official proceedings involving him.”
Corrupt intent: “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.”
This section also includes (1) Trump’s actions toward Michael Flynn and (2) Trump’s actions toward Manafort when it comes to influencing his jury. On those two, Mueller determines that Trump’s intent is not so clearly corrupt. But when it comes to Manafort’s cooperation with the government, Mueller says all three criteria for obstruction are supported by evidence. Unlike some of the ones below, though, he doesn’t call it “substantial evidence.”
2. Efforts to have Donald McGahn deny that Trump tried to fire Mueller
Obstructive act: “Evidence indicates that by the time of the Oval Office meeting the President was aware that McGahn did not think the story was false and did not want to issue a statement or create a written record denying facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn to repudiate facts that McGahn had repeatedly said were accurate.”
Nexus: “The President’s efforts to have McGahn write a letter ‘for our records’ approximately ten days after the stories had come out — well past the typical time to issue a correction for a news story — indicates the President was not focused solely on a press strategy but instead likely contemplated the ongoing investigation and any proceedings arising from it.”
Corrupt intent: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”
Mueller entertains the idea that Trump’s action here might not have met the second criterion of having a nexus to an official proceeding — that perhaps Trump was trying to combat a story he believed to be inaccurate rather than trying to impact an investigation. But then Mueller goes on to downplay that possibility and says firmly that there is “substantial evidence” he was trying to escape legal scrutiny.
3. Efforts to curtail the Mueller probe
Obstructive act: “Taken together, the President’s directives indicate that [Attorney General Jeff] Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections.’”
Nexus: “By the time of the President’s initial one-on-one meeting with [former campaign manager Corey] Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the Special Counsel was public knowledge.”
Corrupt intent: “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.”
Mueller doesn’t specifically say there is evidence of a nexus, but Trump’s action was specifically about the investigation. So the nexus is pretty clear. And Mueller sees “substantial evidence” that Trump was doing this to prevent legal scrutiny of himself and his campaign.
4. Efforts to fire Mueller
Obstructive act: “This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel.”
Nexus: “Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury.”
Corrupt 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. . . . [Trump’s] denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”
Again, the keys words here are “substantial evidence.” Basically, Mueller doesn’t believe Trump’s claim that he was just trying to scrutinize Mueller’s conflicts and didn’t actually try to fire Mueller. He also notes Trump was advised to avoid actions that he later took — suggesting he knew they were problematic.
5. Conduct involving Michael Cohen
Obstructive act: “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.”
Nexus: “The President’s relevant conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct.”
Corrupt intent: “In analyzing the President’s intent in his actions towards Cohen as a potential witness, there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.”
This one might be the most tenuous of the five potentially chargeable offenses Mueller lays out. Mueller doesn’t say the “evidence supports” or that “substantial evidence” supports conclusions that Trump’s actions were criminal. He instead repeatedly refers to how the evidence “could support an inference” of an obstructive act and “could support the inference” of corrupt intent. But he doesn’t land firmly on whether those inferences are the most compelling explanations. At the same time, Mueller lays out a number of ways in which Trump could have had nefarious motives, including:
- Cohen’s false testimony could minimize connections between Trump and Russia — “a goal that was in the President’s interest, as reflected by the President’s own statements.”
- “The President may have been concerned about what Cohen told investigators about the Trump Tower Moscow project.”
- “The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow.”
- "The timing of the statements supports an inference that they were intended at least in part to discourage Cohen from further cooperation.”
Whether any of these charges would be brought if Trump weren’t the sitting president is impossible to say. But on each of them, Mueller seems to believe that the three criteria to potentially charge and prove a crime have been satisfied. And on Nos. 2, 3 and 4, he seems to be pretty firm about it.