Reading the Mueller Report 7
By Suzann Thompson
Tampering with witnesses brings to mind intimidation or threats of violence. The Report On The Investigation Into Russian Interference In The 2016 Presidential Election, otherwise known as the Mueller Report, said tampering with witnesses can be friendly.
Like when Michael Flynn, Paul Manafort, and Michael Cohen were charged with various crimes in the Russia investigation, President Donald Trump encouraged them publicly and privately. He asked advisors to pass messages saying how much the President cared for them. He encouraged them to “stay strong.” Trump’s lawyer Rudy Giuliani told the New York Post that when the investigation was over, “things might get cleaned up with some presidential pardons.” Later Giuliani retracted the statement, but left the question of pardons open. (Vol. II, p. 124) The President talked and Tweeted about how unfair the prosecution was.
Trump was engaging in witness tampering, one of the ways to obstruct justice.
Responding to the Special Counsel’s Office’s investigation into President Trump’s obstructive behavior, Trump’s personal attorneys argued that a president’s constitutional duties are exempt from charges of obstruction of justice. They said firing the FBI Director and stopping Department of Justice investigations were among those protected duties.
In the final section of Volume II, the Special Counsel’s Office (SCO) explained obstruction of justice laws and how they relate to constitutional duties of the President, Congress, and the judicial system.
The SCO cited 18 U.S.C. 1512(c)(2). The number 18 means Title 18: Crimes and Criminal Procedure, and section 1512 is “Tampering with a witness, victim, or an informant.” Paragraph (c)(2) says: “Whoever corruptly—otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” (Vol. II, p. 160; or find the law online)
The words used in laws are so important that millions more words have been written to understand their meanings. For instance, “whoever” means anyone—no exceptions. The Mueller Report explained definitions and legal conclusions about the words “or,” “otherwise,” and “corruptly.”
The report quoted Supreme Court Justice Scalia, who said “the term ‘corruptly’ in criminal laws has a longstanding and well-accepted meaning. It denotes an act done with an intent to give some advantage inconsistent with official duty and the rights of others.” (Vol. II, p. 166)
The SCO’s conclusion was that “the President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony.” (Vol. II, p. 173)
Under Article I of the U. S. Constitution, Congress is authorized to create laws and apply them to everyone, including the President. Congress also has power to “protect the judiciary against obstructive acts.” (Vol. II, p. 176)
An opinion of the Office of Legal Counsel prevents the Department of Justice from bringing charges against a sitting president, so it falls to Congress to take action against a president who uses presidential powers corruptly to obstruct justice.
The SCO’s conclusion to Volume II bears repeating: “…if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. …while this report does not conclude that the President committed a crime, it also does not exonerate him.” (p. 182)
Finally, Appendix A reproduced Rod Rosenstein’s letter appointing the Special Counsel and defining the scope of the investigation; Appendix B helpfully listed people, organizations, and acronyms named in the report; and Appendix C showed the SCO’s questions for President Trump and the answers he wrote under oath.
The President gave few definitive answers: he did not remember, had no independent recollection, or did not recall many conversations or circumstances. He remembered saying in 2016, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” He said he made the statement “in jest and sarcastically.” (Appendix C, p. C-18) Trump confirmed signing a letter of intent for a Trump Tower Moscow project, but wrote that conversations he had about the project were not memorable. (Appendix C, p. C-15)
Appendix D listed matters that arose from the Russia Investigation. Ten were transferred to the Department of Justice or the FBI for further investigation and/or prosecution. Fourteen matters were outside the scope of the Special Counsel’s remit, and were referred to other law enforcement groups. Information on 12 of those 14 matters was redacted. Finally, three cases were prosecuted by the Special Counsel’s Office.