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What the Mueller Report Says About Obstruction

In the hours after the public release of the redacted report from special counsel Robert S. Mueller, President Donald Trump took to Twitter with a message that reads, in part, “NO OBSTRUCTION!”

That’s not at all what the Mueller report says, though.

“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,” Mueller wrote. “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.”

Mueller, however, refrained from recommending prosecution, saying that there were “difficult [legal] issues that would need to be resolved,” in order to reach a conclusion that the crime of obstruction of justice was committed by Trump.

Factoring into his decision not to weigh in on prosecution, Mueller wrote, was an opinion issued by the Office of Legal Counsel finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”

“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct,” Mueller wrote.

Mueller emphasized, however, that his analysis of the evidence did not clear the president of obstruction. Said Mueller: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”

Mueller noted several complicating factors with respect to determining whether illegal obstruction occurred. For starters, he wrote, “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Or, as Trump has repeatedly reminded, the report found “NO COLLUSION” by anyone in the Trump campaign with Russians trying to sway the 2016 election in his favor. But that doesn’t preclude the possibility of obstruction, Mueller said. According to the report, “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.”

Nor does the fact that many of the president’s acts occurred in public view — “including discouragement of cooperation with the government and suggestions of possible future pardons” — necessarily clear him, the report states.

Mueller report: 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.

Mueller noted that it was only the refusal of Trump’s underlings to go along with his efforts to tamper that kept Trump from being able to successfully impede 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. [Former FBI Director James] Comey did not end the investigation of [Retired Lt. Gen. Michael] Flynn, which

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