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Did Trump Obstruct Justice? Here’s What Former Prosecutors Think

7 minute read

After a special counsel declined to take a stand on whether President Donald Trump had committed obstruction of justice in the Russia investigation, Attorney General William Barr decided there was not sufficient evidence that he had.

The decision by Barr and Deputy Attorney General Rod Rosenstein sprang from a comprehensive report prepared by Robert Mueller on his now-concluded investigation. While that report has not been made public, a summary Barr sent to Congress said “most” of the evidence on obstruction has “been the subject of public reporting.”

A senior Justice Department official confirmed to TIME that most of the evidence is already known from news reports.

“That’s a significant line and that was put there intentionally,” the official said. “You all know basically almost as much as we do.”

In considering an obstruction case, former federal prosecutors say several of Trump’s actions stand out, including allegedly asking FBI Director Jim Comey for “loyalty” during a private dinner; allegedly telling him in the Oval Office that he hoped he could let an investigation into former National Security Advisor Michael Flynn go; firing Comey; telling NBC News and the Russian ambassador that he fired him over the Russia investigation; allegedly pressuring then-Attorney General Jeff Sessions over his recusal from the investigation; allegedly dictating a misleading statement from his son, Donald Trump Jr., to the New York Times about a 2016 meeting with Russians in Trump Tower; alleged conversations between his lawyer and lawyers for Flynn and former campaign chairman Paul Manafort about pardons; alleged conversations between lawyers about a pardon for former personal attorney Michael Cohen; and many of Trump’s tweets praising or threatening various witnesses in Mueller’s investigation.

Former federal prosecutor Renato Mariotti said that record alone is damning, although he added that it would be good to know more about what Mueller learned about those actions before coming to a conclusion.

“Based upon the public information that’s available, it looks to me like there’s sufficient evidence to charge Trump with obstruction of justice,” he told TIME, adding, “there is certainly additional evidence that I have not seen and that may provide additional context that would make it a difficult decision.”

It is unlikely that Trump would have faced criminal charges. Under long-standing Department of Justice guidelines, a sitting president cannot be indicted. Former federal prosecutor Stephen Binhak told TIME that many of Trump’s actions were also perfectly legal, since as president he supervises the Department of Justice. That means Trump would only face trouble if they were paired with another crime or if they were considered impeachable offenses, he explained.

To use a hypothetical: Granting a pardon is legal; granting a pardon in exchange for a bribe could be illegal; granting a pardon to protect your own interests could be legal but also grounds for impeachment.

“Generally, it is not a criminal offense to the president to exercise powers that he has under Article I of the Constitution,” he says. “The mere firing of an executive branch official, like the director of the FBI, would not be a criminal offense. But it could be an impeachable offense. By contrast, if the president violates a criminal statute, for example, by bribing a witness in a case against him, that would be a criminal offense and also potentially an impeachable offense.”

But that means that a lot of the case against Trump would depend on his state of mind, meaning prosecutors in a criminal case or impeachment managers in a Senate trial would need to prove beyond a reasonable doubt that he acted with corrupt intent.

“He may have a genuine belief that there’s nothing to the investigation of him, and that may have colored his view,” Mariotti says. “It may also be difficult to prove what exactly Trump actually believes. It’s possible that Trump says so many things on a regular basis that go in different directions that it may be hard to prove that he means anything he’s saying.”

Read More: Trump Made 268 Arguments About the Mueller Investigation

There’s also a legal debate over some of Barr’s reasoning. In his memo to Congress, Barr said that he determined that there was not enough evidence on obstruction in part because Trump was not “involved in an underlying crime related to Russian election interference.” Marriotti disputes Barr’s reasoning, calling it a weak argument because a person could have had a corrupt intent for obstructing justice even if they had not committed an underlying crime.

Still, former prosecutors said the decision on something like this would often fall to prosecutorial discretion.

Prosecutors could decide that Trump’s actions did not affect the eventual result of the investigation and decline to pursue charges on obstruction, says Jonathan Biran, a former federal prosecutor currently working at the firm Baker Donelson. For example, while Trump firing Comey and then admitting he did so because of the Russia investigation could look like an attempt to obstruct justice, he ultimately allowed the special counsel’s investigation to finish without firing Mueller.

“The investigation did proceed in a very substantial, robust manner after Comey was fired,” Biran says. “If there was no ultimately harmful effect on the investigation because [Deputy Attorney General Rod] Rosenstein and Mueller were able to ensure all the investigation they wanted to do got done, a prosecutor might use discretion not to charge the president, even if they felt the intent in firing Comey was to try to thwart the investigation.”

Same goes for what Trump allegedly told Comey about Flynn, Biran said.

“Regardless of the president’s goal in asking Comey to take action, the fact that Flynn remained charged or was charged and that case went to its conclusion would perhaps cut against the need to prosecute against the president,” Biran says. “If he’d successfully derailed the Flynn case there might be a more compelling argument to pursue the obstruction charge.”

Such arguments can be used by prosecutors particularly when considering the fact that Trump is president, says Biran. “The Flynn thing, it was a suggestion, a request,” he said. “While that could be technically be considered obstruction, a prosecutor could say it wasn’t enough to warrant the step of charging the president of obstruction.”

At the same time, Biran thought that alleged pardon discussions with Flynn and Manafort while their cases were ongoing seemed more troubling.

“It could be interpreted as a public way of reaching them and imply that if they maintained their silence he’d fix it at the end, and use his presidential pardon power to mitigate any harm that would come to them,” he says. “If that were his intent and a prosecutor could prove that, that to me starts to seem like a closer call.”

What is unlikely to appear is a “smoking gun” that points clearly to obstruction, Biran says. Trump has made many of his statements on the investigation in a public setting, whether in interviews or on Twitter, and, typically, obstruction is a “crime that occurs in secret,” he says.

“Obstruction gets charged all the time, it’s not a rare offense, but when you’re talking about a sitting president you’d want to have clear cut proof of the intent,” he says. “The public nature of a lot of this would arguably cut against the corrupt intent that is often proved in part by efforts of secrecy.”

With reporting from Tessa Berenson in Washington

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Write to Mahita Gajanan at mahita.gajanan@time.com