"CORRUPTLY...ENDEAVORS TO INFLUENCE...OR IMPEDE, THE DUE ADMINISTRATION OF JUSTICE"

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In case you are not familiar with the titled phrase, it is a quote from Title 18, section 1503, of our federal criminal code. All who offend that section are guilty of a felony, and subject to imprisonment for up to ten years.

The statute prompts a number of questions about the Mueller report.

I.

Mueller acknowledges the President has "no more right than other citizens" to impede official proceedings by corruptly influencing criminal investigations. The is just a rephrasing of the Supreme Court's holding that the President is not above the law. "No man in this country is so high that he is above the law." Nixon v U.S.

Next, Mueller lists a score of instances of Trump's unambiguous efforts to interfere with the administration of Justice. Here are some of the prominent examples:

a) When the heads of our intelligence agencies, including the NSA, the FBI, the CIA, and the national chief of intel, told the President and Congress that the Russians interfered with the 2016 election, Trump told instructed the head of the NSA, "this Russia story has to go away." (A remarkable parallel: Recall, please that the famous "smoking gun tape" that brought down Nixon was a recording of his instruction to his chief of staff to tell the CIA the quash the FBI Watergate investigation!)

b) Trump demanded Sessions "curtail" and "control"  the Mueller investigation, and pressured Sessions to do so or resign. When Sessions failed to "unrecuse" himself, Trump repeatedly publicly humiliated him, and ultimately forced him to resign because of that issue.

c) Trump made efforts to influence witnesses to stand fast and not cooperate with Mueller by dangling prospective pardons. Before Cohen flipped, Trump's acolytes gave him several messages from the President that "he was loved." Similar messages were given to Flynn. As to Manafort, Mueller reported, "The President and his counsel made repeated statements that a pardon was a possibility for Manafort, while making it clear the President did not want Manafort to "flip" and cooperate with the government."

d) Trump told Lewandowski to have Mueller fired. (Recall, please, that upon learning of Mueller's appointment, Trump said, "I am fucked.")

e) When Lewandowski did nothing, Trump called  McGahn at home at night (twice) and insisted he fire Mueller.

f) When news of Trump's call to McGahn was reported in the press,  Trump angrily denied the calls, and insisted McGahn write a letter publicly denying the Trump directive. That, says Mueller, was a double whammy: Not only did the President endeavor to obstruct the investigation by directing the firing of the Special Counsel, Trump then commanded McGahn to write a letter denying Trump had issued that instruction --a document that could be used as misleading evidence in a prospective legal proceeding. McGahn's lawyer told the President's lawyer that McGahn would not write the letter Trump wanted because it would be a lie: the press report was accurate.

Trump's legal team waged a public legal argument using disgraced legal shills like Giuliani and Dershowitz, asserting that the President could not be guilty of obstruction because, as Chief Executive, he had the Constitutional prerogative to fire these people and issue those instructions.  Stated otherwise, the legal wingnuts argued that as head of the Executive branch, the President was Constitutionally entitled to control the administration of justice, and he is therefore legally entitled corruptly to interfere with the administration of justice!

The Mueller report addressed that legal argument and shredded it. It is simply absurd. The law is abundantly clear one cannot do an otherwise legal act for an illegal reason. For example, while the President has the Constitutional power to pardon a convicted criminal, it cannot be reasonably argued he may do in exchange for a bribe. The key is the word "corruptly."

In other words, the President can fire Mueller, or issue or promise a pardon, but he cannot do so "corruptly." That means the President is guilty of felony obstruction if he did the stuff described above "with an intent to obtain an improper advantage for himself or someone else, inconsistent with [his] official duty."

And if there is any doubt about the boundaries of the President's official duty, please recall that the Constitution required Trump to "take Care that the Laws be faithfully executed."  And to bell the cat, Mueller even told us his team examined what the so-called "textualists" and "originalists" on the Supreme Court might say about what those words mean. A 1755 dictionary written by Samuel Johnson, defined "faithfully" as "strict adherence to duty and allegiance."

No sentient juror, in or outside of Congress could, with a straight face, conclude that Trump i) told the NSA to kill the Russia investigation, ii) pressured Sessions to control Mueller, iii) directed Lewandowski and McGahn to fire Mueller, iv) then directed McGahn to create evidence lying about that Presidential order, v) dangled pardons before prospective witnesses, vi) criticized those who might cooperate with the government, vii) and more, for any reason beyond trying to "obtain an improper advantage for himself or someone else" (e.g., a son, perhaps?).

So why did Mueller punt?

One of the reasons he cited was the DOJ policy barring the indictment of an incumbent President. This, Mueller concluded, not only preventing him from indicting the President, it prevented him from even stating in his report that the evidence justified such an indictment! Mueller reasoned that saying the President should be indicted but not indicting him, or indicting him now and postponing the trial until he was no longer in office, would be unfair to the President because it would deprive him of a forum in which to plead not guilty and thereby defend himself. How ridiculous is that? Trump without a forum to defend himself? Twitter, the front pages of the nation's newspapers, the leading story on the nightly news? Trump too shy to employ those?

II.

And inasmuch as there was no merit to the Trump argument about his alleged power to obstruct justice, why did Mueller permit himself to be buffaloed and permit the President to avoid oral testimony, and then submit to the Trump teams' insistence that Trump would refuse even to answer written questions on subject of obstruction?

III.

Another question I have about the report is Mueller's reliance on Trump's repeated failure to achieve execution of his orders: The NSA chief did not kill the Russia investigation, Sessions did not "unrecuse" himself and control Mueller, firing Comey did not end the investigation, both Lewandowski and McGahn disobeyed orders and did not fire Mueller, Cohen and Manafort flipped despite the pardon dangle, etc. The media has picked up on that and frequently reported that the President's appointees "saved him" by ignoring his orders. 

But that conclusion ignores a key word in the obstruction statute: "endeavors." Obstruction, like conspiracy, does not require successful completion of the plan. Just trying to obstruct is enough to complete the crime. Trump is a criminal because he "endeavored" to obstruct the due administration of justice, and the failure of his staff to obey his orders is irrelevant. 

Why did Mueller let him off that hook?

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Will Congress uncover the answers to these questions? I suggest the real Constitutional crisis is ahead of us: Trump has decided to follow Nixon's advice, that when attacked, "Stonewall it ... anything to save the plan... ," and has opposed any and all efforts at Congressional oversight. His claims are remarkably baseless, even for Trump.

More on that another day.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

And by the way, if you want more info on some of the issues of the day, check out my memoir, "The Client Decides."  First Amendment stuff, Jackie Onassis, Donald Trump, Roy Cohn. Good stuff!