Thread by @HoegLaw

Alright, who's ready for a page turn highlight review of Volume 2 of the #MuellerReport? (For yesterday's extensive Volume 1 review, please see the link below).

This will take a while, so check back on the thread periodically.

https://twitter.com/HoegLaw/status/1118895329489891333

Volume 2 of the #MuellerReport begins as Volume 1 did, with a sentence setting the tone. A "variety of actions".

So, from a legal point of view, the Special Counsel felt obligated under its statutory authority to not indict a sitting President (really for any reason) based on a 2000 Office of Legal Counsel determination. Note that this does not preclude an indictment after leaving office.

The #MuellerReport notes that indictment and criminal proceedings are as much about clearing folks as convicting them, and without that clearance function it is not in the interest of fairness to issue a reported determination that a crime was committed w/o an indictment.

But the #MuellerReport then doubles back on that, saying that it would include a claim of obstruction if the case was clear (which it isn't). Seems to be having it's cake and eating it too, especially since "does not exonerate" performs a similar function to a claim of crime.

Based on that reading of the intro, it's easy enough to infer that the #MuellerReport thinks at least some of Trump's actions likely flew too close to the sun, and it wants to convey that absent extraordinary proof the report was always going to avoid a formal determination.

The various sections of the #MuellerReport will get into the details, but the 11 possible obstruction avenues identified are: (i) Response to Russian Support, (ii) Comey/Flynn Conduct, (iii) Response to Russia Investigation, (iv) Comey Termination, (v) Special Counsel... (cont.)

(vi) Efforts against SC investigation, (vii) prevention of evidence disclosure, (viii) effort to have AG take over SC investigation, (ix) effort to have McGahn deny SC removal order, (x) Flynn, Manafort, and [Redacted] conduct, and (xi) Cohen conduct.

Here, the #MuellerReport identifies some of the sticking points with a claim of obstruction: namely that many of the actions taken by the President were within his Constitutional powers, took place in public, and "obstructed" (if at all) no underlying crime.

But at minimum the #MuellerReport is displeased, especially after the President became a target of the investigation. "Public attacks", "non-public efforts to control", "efforts...to encourage witnesses not to cooperate." This is the strongest language in the report so far.

Here's where things get sticky for the #MuellerReport. I'll be interested to read the more fulsome section on the case law here, as the "corruption" standards which would allow an obstruction claim for an exercisable Constitutional power seem here written from whole cloth.

In particular, this reads much more as persuasive speech making then neutral determination of the law. Reasonable minds can differ as to whether corruption inquiries (especially where no corruption is found or likely to be found) could chill another branch's exercise of power.

The #MuellerReport turns to defining obstruction. (Honestly, this probably should have been a part of the executive summary; many will only get that far.)

You need all three of (i) an obstructive act, (ii) a nexus between the act and a proceeding, and (iii) a corrupt intent.

The obstructive act itself does not need to be obvious or even direct.

Here, we get into a problematic area (which applies well outside of Trump). Obstruction can occur even for lawful acts taken with proper authority (but with a corrupt motive). This starts to verge pretty closely on "thought crime".

The nexus requirement is less controversial. You need a proceeding like an investigation, an act likely to obstruct it, and an actor who knows or has reason to know about the proceeding. Notably, an actor can obstruct through a third party (that's going to come up.)

Corruption (an intention requirement of an obstruction charge) is interpreted simply as acting for improper advantage inconsistent with duty.

As a bonus, the #MuellerReport also details the separate crime of "Witness Tampering". Notably, the requirements here require intent or corrupt motive. The statute is not designed to criminalize accidental or non-corrupt witness effects.

Finally, at the end of the mini law school class on these crimes, the #MuellerReport establishes what attempt and endeavor mean in the context of obstruction (generally, any effort to impede the administration of the proceeding).

The basis for Mueller beginning the President's obstruction of justice investigation. Most relate to treatment of Comey/Flynn and the Trump Tower meeting (for Clinton "dirt").

The #MuellerReport is not thrilled that the President did not agree to provide answers to obstruction questions (nor on the answers he did give).

(Also that Grand Jury redaction in the middle of that paragraph is ominous. Wonder what that is?)

The first section included here (on Trump's denial of Russian support) is an odd one. The footnote says it is included for context, but seems designed by its nature to put Trump in a bad light irrespective of the fact that the #MuellerReport itself found no coordination.

No analysis of potential obstruction is given in respect of the Russia response section, because none is claimed. It mostly stands as repetition from Volume 1.

The first obstruction analysis: whether Trump obstructed justice by telling then FBI Director Comey that he hoped Comey would let Michael Flynn's lies about pre-administration contact with the Russian ambassador go. (Flynn had worked to reduce the effect of Obama-era sanctions.)

Some interesting well-sourced descriptions of "inside the White House" decision making during the transition and initial months of the Trump campaign here, by the way. Highly recommend it for folks interested in that sort of thing.

The #MuellerReport then looks at the statement as a prosecutor would, checking against required elements (act, nexus, corruption). First, on the act, Mueller effectively calls the President a liar in favor of Comey's interpretation of the circumstances leading to the statement.

The #MuellerReport also finds that the "hoped" language does not distinguish the comment from a presidential directive.

Nexus is no problem.

(So it's down to corrupt intent.)

If the President knew of Flynn's lies contemporaneously, stopping the investigation could be seen as corrupt protection of himself.

The #MuellerReport stops short of such a claim.

Or perhaps if he thought letting the whole Flynn thing do would end the Russia investigation...but again the #MuellerReport leaves both the implication of that logic and whether or not it rises to the level of corruption outside of the four corners of the report.

Some other "thoughts" are then bandied about, but none coming to any form of conclusion. The section of the #MuellerReport on Flynn/Comey then ends without establishing any form of corrupt intent (but implying plenty of them).

As an aside, and as no fan of Trump, I have to say that if this is the manner in which all of the potential claims are treated, particularly in light of the report's earlier discussion on how a lack of indictment or claim denies the accused of clearance, I believe it's a problem.

The Flynn/Comey section of the #MuellerReport (like the section on denials of Russian collusion) reads as little more than prosecution by implication, and is enormously dangerous in our modern media landscape. No clearance is possible because the claims are made as "musings".

But moving on... lets talk about Jeff Sessions.

Was there an obstructive act in Trump's reaction to the Sessions recusal and the Russia investigation going public? Maybe? (But probably not.)

Was there nexus? Yup. (Nexus is easy when talking about ongoing investigations.)

There's no corrupt intent (because there is no act), but the #MuellerReport still finds the Trump reactions noteworthy enough to opine on.

(The corrupt intent analysis section appears to be where the #MuellerReport will do most of its editorializing.)

But what about Comey's firing?

Obstructive act? Maybe. (Again, not coming to the remotest conclusion on these items is frustrating. Not sure what the #MuellerReport is framed this way if the intent is to act as legal analysis.)

Nexus. Yup. (Although the #MullerReport does not even reach this simple conclusion.)

Corrupt intent? Maybe? The report establishes its belief that the firing was done because Comey was not willing to state that the President was not under investigation, but was that corrupt? Not if it was related to the performance of his duties, but...

Maybe if it was designed to prevent an investigation of the campaign.

The #MuellerReport then opines that perhaps the President fired Comey because he wanted to avoid a thorough investigation due to "personal or political" concerns.

Not to put too fine a point of it, but virtually everyone should want to avoid an investigation for such reason.

The #MuellerReport also finds that the firing was based on pretext and was already decided before the official reports were made. It does not say whether that means anything in particular.

I'll continue my review, but it's becoming increasing apparent that the #MuellerReport is not really interested in discussing conclusions on any of these matters.

On Trump's proposed firing of the Special Counsel:

And on Trump's initial reactions to the hiring of the Special Counsel:

(At bare minimum, Trump seems prone to dramatics. "This is the worst thing that ever happened to me.")

Was there an obstructive act? Here the #MuellerReport comes very close to actually making a determination (yes), though it does so while not concluding that the special counsel's firing would, in fact, necessarily be obstructive. (Same hedging as the rest of the document.)

Nexus? Yup.

Corrupt intent? This is as close as I've seen so far to the #MuellerReport actually claiming all three elements of obstruction (not coincidentally related to the role of the special counsel):

The biggest missing piece w/r/t potential firing of the special counsel then, is whether the act itself was obstructive, particularly if the investigation would simply have continued under another principal. And, of course, the Constitutional difficulties already discussed.

Next item: A proposed message to be read by Sessions that would have the effect of limiting the Special Counsel's investigation to the election meddling (presumably the IRA/GRU Russian crimes).

Obstructive Act? Seems like it (no conclusion from the report).

Nexus? Yup.

Corrupt Intent? Again, this is basically a yes from the #MuellerReport, though it steadfastly avoids making any conclusions outside of the "musings" we've seen in other sections. There are no counter-arguments proposed in respect of this item, however.

Though it avoids making such conclusions, it seems fairly clear that the #MuellerReport views both the order to terminate the special counsel, and the implied order to Sessions to limit the Special Counsel investigation to non-Trump related items as "obstructive".

On hiding the nature of the June 2016 Trump Tower ("dirt") meeting.

Is there an obstructive act? Seems the answer is no as any misleading statements were directed at the press and not the Special Counsel. (Though again, no conclusion is given). (Note that this basically ends the inquiry on this matter.)

The section further states that though there is nexus, the intent appears to have been to develop a press strategy and there is no tie to impeding the investigation.

How about some more Jeff Sessions?

Is bringing Jeff Sessions back an obstructive act? As per usual the #MuellerReport mulls over a few possibilities, but as opposed to some of the other sections they appear particularly weak here. Hard to say whether this would be a yes or a no based on the report.

Nexus is easy, but how about intent? Here the #MuellerReport combines the previous claim that Trump proposed to (indirectly) instruct Sessions to limit the scope of the investigation as evidence that placing Sessions in charge would be designed to effect such a limit in scope.

So, maybe but probably not an obstructive act, with maybe but also probably a corrupt intent. Yeah, the Jeff Sessions unrecusal is not the strongest case in the report.

Next up: The President tries to hide that he almost had the Special Counsel fired.

Side note: This is great.

Pro Tip to Future "Real" Lawyers: Take notes, particularly with a squirrely client (or client adjacent individual). You never know when you might need them.

#MuellerReport: Gaslighting is an obstructive act. Also, Mueller, the President may not actually have been gaslighting the white house counsel.

Man, conclusions would be useful.

Nexus is established because the timing suggests the request was not based on press strategy.

Yes to corrupt intent as well. So absent a few small issues with the act and nexus components this is the third item where the #MuellerReport comes close to claiming obstruction.

Interesting that they all have directly to do with the role of Special Counsel itself.

On the President's conduct with respect to the folks indicted for various crimes (Flynn, Manafort, and [REDACTED]):

Any obstructive acts? The #MuellerReport certainly seems to imply as much, especially with Manafort and dangling a pardon out there.

Nexus is once again easy. How about intent? The #MuellerReport says that intent w/r/t Flynn is inconclusive (largely because of attorney/client privilege).

The #MuellerReport finds that actions taken by the President w/r/t Manafort were intended to encourage him not to cooperate. Together with the obstructive act itself and the nexus, this appears to be the fourth claim the report would call "obstruction" were it making conclusions.

The jury case is not as clear cut, and there is an entire redacted witness which would seem to open up additional avenues of liability for the president.

Finally, Michael Cohen (note the description of facts here is the longest at almost 20 pages).

The inquest on the "obstructive act" component is a bit longer here, and divided into two parts: (i) whether the President aided or encouraged Cohen to lie, and (ii) whether the President tried to prevent Cohen from working with the government.

On the first of these the #MuellerReport determines that it cannot show that Trump helped w/ the lie (though it does indicate that Trump knew about it). Again, attorney/client privilege prevented any knowledge of communications between Trump and his personal counsel.

On the second point (witness inducement/intimidation) the #MuellerReport is infuriatingly inconclusive, but does suggest the same kind of obstructive act that would appear present in connection with the Manafort analysis.

Nexus is easy given the investigations. Intent is the now usual "maybe", but with a clear indication that the #MuellerReport believes it to be "probably". In particular, the intent in respect of the inducement/intimidation prong seems to match that of the Manafort analysis.

So this would appear to be the fifth claim the #MuellerReport would make on obstruction if it was in the business of establishing actual claims.

(I might just do a chart.)

As promised, here is my table of interpretations of the #MuellerReport obstruction descriptions (keeping in mind that it makes no conclusions on its own).

Please feel free to share around, as I feel there is a bit of misinformation out there.