In a dysfunction too typical of our media cycles, unrelenting attention was paid to Robert Mueller’s report — which was released April 18 — before anyone really had a chance to read its 400-plus pages. Now that there has been time to read and analyze it, the news cycle has largely moved on.
Lost in that is something important. When read in full, the report makes clear that Special Counsel Robert Mueller’s team was trying to send a message to Congress. The message is that sufficient evidence exists to impeach President Donald Trump for attempted obstruction of justice.
Many commentators have correctly noted that the Mueller report does not explicitly state that the president should be convicted of or impeached for a specific crime. The authors of the report, though, carefully explained why they didn’t state that, and then moved on to do something subtle but compelling. In painstaking detail, they set out the elements of the crime of attempted obstruction of justice, and then described the convincing evidence that could prove up each of those elements. This is the most important part of what prosecutors do when they want a charge from a grand jury.
Significantly, Mueller concluded that Trump likely did not actively conspire with Russia to undermine the election of 2016. He also soft-pedaled proofs going to a successful, completed obstruction of justice, because Trump’s efforts to obstruct justice were consistently undermined by his own staff. Instead, what Mueller hones in on is Trump’s attempts to obstruct justice, which are specifically criminalized under 18 U.S.C. §1512(c)(2).
For example, one of Trump’s plans was to have White House Counsel Donald McGahn instruct the deputy attorney general to fire Special Counsel Mueller. It was a straightforward action. According to evidence that Mueller found convincing, in June 2017, Trump “called McGahn and directed him to have the Special Counsel removed.” Despite Trump’s repeated follow-ups to McGahn and his deputy, McGahn did not follow through.
While avoiding an explicit ultimate conclusion, Mueller’s team made very clear how attempted obstruction could be shown based on Trump’s directive to McGahn. They set out three core elements of that crime — the existence of an obstructive act, a nexus to an official proceeding and intent — and then painstakingly lined up the evidence that proves each.
On the existence of an obstructive act, Mueller’s group described four key facts that show such an act: McGahn’s convincing recollection of being told to fire Mueller, the president’s focus on Mueller’s supposed conflicts of interest, the president’s urgency (“you gotta do this”) and the president’s consistent discussions of the plan with McGahn and several others. The report then laid out what it calls “substantial evidence” of nexus to an official proceeding and additional “substantial evidence” of intent. The evidence matches the elements.
As a former federal prosecutor who trains future prosecutors, I recognize this as a very clear message: A charge is warranted, through impeachment by the House.
So then, why didn’t Mueller just come out and say that he thinks Trump is guilty of this felony?
The answer is no mystery. It’s found in the heart of the report, on the second page of the section devoted to obstruction: Given that Department of Justice policy forbids indictment of a sitting president, it would be unfair to publicly allege a crime has been committed under circumstances that give the accused no opportunity to clear his name through trial and a “not guilty” verdict. As the report puts it, “a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”
Since the special counsel in fairness can’t make the allegation, Congress must. Impeachment would provide a process (trial in Senate) that allows the president to defend himself and seek acquittal.
Whether Congress should accept Mueller’s invitation to impeach is a different and difficult question. The many prosecutors in Congress know that it is often wise to avoid charging a case you are unlikely to win, and that’s the situation here. The House, after all, merely acts in the role of a grand jury and decides on whether a charge will be made. In the end, it is the Senate that serves as the jury. And the odds for conviction in the Senate are long, given the Republican majority there and the need for a two-thirds majority to convict.
There is a certain elegance to the Mueller report. As in a good novel, the shape of the story becomes clear only when read in full. Hopefully, members of Congress will do exactly that before making the difficult decisions that lie ahead.
Mark Osler is a former federal prosecutor, a law professor at the University of St. Thomas and the author of “Contemporary Criminal Law.”