By Joyce White Vance
July 25, 2019
IDEAS
Vance is distinguished professor of the practice of law at the University of Alabama, a former U.S. Attorney for the Northern District of Alabama and an NBC News and MSNBC legal analyst.

Yesterday, America saw hearings on the two volumes of the Mueller Report. First, House Judiciary took up the analysis of potential obstruction of justice charges in Volume II. In the afternoon, the Permanent Standing Committee on Intelligence considered the Trump campaign’s relationship with the Russian government and Russia’s ongoing threat to our elections. Although two separate hearings took place, it would be a mistake to consider the issues they raised in isolation from each other.

Mueller’s now well-known legal conclusions were (1) that he had insufficient evidence to charge a conspiracy between any members of the Trump campaign and the Russian government and (2) that DOJ policy prevented him from making a charging decision about a sitting president so he would simply lay out his evidence for 10 potential instances of obstruction of justice by the President. The report suggests, and Mueller’s testimony yesterday made clear, that there is an important interplay between the government’s inability to charge a conspiracy and obstruction of justice.

Obstruction of justice is a crime that is independent of any underlying or substantives crime that may have been committed. It is well-established that defendants can be charged with obstruction when they are not being charged for any other crimes. This is so, as Mueller stated in his May 29, 2019 press conference, because, “[w]hen a subject of an investigation obstructs that investigation, or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.”

Mueller’s testimony yesterday highlighted the connection between obstruction and collusion. When he discussed his decision not to indict a conspiracy, he did not characterize it as one made because there was no evidence. It was because he did not have sufficient evidence – in other words, enough evidence to prove guilt beyond a reasonable doubt. There was plenty of evidence of connection between the campaign and Russia, ranging from shared internal polling data to Trump’s request that Russia find Hillary Clinton’s emails to the appearance of the top tier of Trump’s campaign team at a meeting explicitly requested so the Russian government could provide election help to “Mr. Trump.” Mueller had plenty of smoke, but he lacked a smoking gun.

During the morning session with the Judiciary Committee, Congresswoman Val Demings, the former police chief of Orlando, questioned Mueller about witnesses who lied to investigators. He told her that they fell along a spectrum from witnesses who did not tell the whole truth to “outright liars.” Demings asked whether this impeded the investigation and Mueller said he generally agreed.

This is the exchange we should be focusing on.

Although Mueller was constrained from offering a prosecutorial judgment on obstruction, more than 1,000 former federal prosecutors, Republicans and Democrats, from across multiple administrations have opined that if Trump were not a sitting president, he would have been indicted for his conduct. Now take the obstruction committed by the president, amplify it with the witness problems Mueller reported, and consider what that means in regards to Mueller’s conclusion he lacked sufficient evidence to charge a conspiracy.

Mueller actually did that assessment for us. In Volume I of the report, p. 10, he reveals that some witnesses used the Fifth Amendment to avoid testifying, while others lied or offered incomplete testimony. Still others destroyed evidence. He concluded, “while this report embodies factual and legal determinations that the Office believes to be accurate and complete … given these identified gaps, the Office cannot rule out the possibility that the unavailable evidence would shed additional light on (or cast in a new light) the events described in the report.” In the low-key fashion we have come to expect from the former special counsel, this is an acknowledgment that obstruction may well have impacted investigators’ inability to charge conduct that the public has watched unfold over the last two years.

Did the President’s obstruction and the obstruction of those around him keep the truth from coming to light? Was there a conspiracy? The short answer is, we don’t know for sure. There are, at least so far, no tapes like the ones that came out of Richard Nixon’s office. The publicly available information makes it look like misconduct was committed, but Mueller determined he came up short on the technical legal requirements for charging.

We are left to ask whether this is how an American president should behave. Are we comfortable with a president who believes the public should be kept in the dark? Trump didn’t sit for an interview. He didn’t give full responses to written questions. Is that a commitment to justice and truth? Is that upholding the oath of office?

Prosecutors left a roadmap for Congress to use to try to answer those questions.

During yesterday’s hearings, a number of Republican members were outraged by what they called Mueller’s unprecedented decision to “not exonerate” the President on obstruction. They argued it was not a prosecutor’s job to exonerate. But the situation Mueller faced is not one federal prosecutors typically encounter because the main tool in the prosecutor’s toolkit, bringing charges via indictment, was not an option here.

The steps Mueller took were only unprecedented because he was in uncharted territory with a sitting president – the only person in our system of justice who cannot be indicted – who went to great lengths to try to keep the truth from being uncovered during a criminal investigation. Not only did the president decline to be interviewed or provide full answers to many of the written questions posed to him, he tried to fire the special counsel and tried to cover up his directions to White House counsel Don McGahn in that regard, he tried to persuade then-Attorney General Jeff Sessions to “unrecuse” from the Russia investigation and limit its scope so that his own campaign would be excluded from its reach, and he encouraged key witness like Paul Manafort, Michael Flynn and Michael Cohen to remain loyal to him, not to cooperate with prosecutors. Prosecutors didn’t have a binary choice between charging and not charging when it came to Trump. The choices were, don’t charge, as with conspiracy, or don’t charge but lay out the evidence that makes clear that that decision, while compelled by DOJ policy, was not an exoneration.

As we continue to review Mueller’s testimony, determine what it means and what should come next, it’s critical that we focus on the seriousness of the evidence in Volume I of the report regarding the multiplicity of contact Trump and his campaign had with the Russians and the open arms with which they accepted Russian activity designed to turn American voters toward him. Mueller wanted focus on his conclusion that it was not possible to exonerate the President on charges of obstruction. As Ohio Republican Mike Turner pressed him near the end of the Intelligence Committee hearing on whether DOJ had the power to exonerate people and whether it was appropriate for him to say that the investigation had not exonerated the President, Mueller suddenly pushed back. He told Turner that he included his conclusion on the lack of exoneration in the report because the Attorney General might not know this was their conclusion and “he should know it.” Mueller was not writing a report for the public. He was writing the confidential report to the Attorney General that the special counsel regulations called for.

The Attorney General ignored Director Mueller’s conclusion. In fact he navigated 180 degrees from it to declare that the investigation had given the President a clean bill of health – no collusion, no obstruction. But that is not the case in either regard, and in fact, it may be that it was the obstruction that led to the absence of conspiracy charges. We would do well to take Mueller’s unheeded warning to the Attorney General to heart as we move forward.

Contact us at editors@time.com.

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