Prosecutors working for Special Counsel Robert Mueller concluded last year that they had sufficient evidence to seek criminal charges against President Donald Trump for obstruction of justice over the president’s alleged pressuring of then FBI Director James Comey in February 2017 to shut down an FBI investigation of the president’s then national security adviser, Michael Flynn.
Privately, the two prosecutors, who were then employed in the special counsel’s office, told other Justice Department officials that had it not been for the unique nature of the case—the investigation of a sitting president of the United States, and one who tried to use the powers of his office to thwart and even close down the special counsel’s investigation—they would have advocated that he face federal criminal charges. I learned of the conclusions of the two former Mueller prosecutors not by any leak, either from them personally or from the office of special counsel. Rather, the two prosecutors disclosed this information in then-confidential conversations with two other federal law enforcement officials, who subsequently recounted what they were told to me.
On March 24, without consulting with Mueller, Attorney General William Barr declared that in the absence of a final judgment by Mueller as to whether or not the president broke the law, he, the attorney general, had taken it upon himself to make that determination in a summary he sent to Congress. Barr decided that Trump wouldn’t be charged with a crime. But many career Justice Department employees, former prosecutors for the special counsel, and legal scholars have questioned the propriety and legitimacy of Barr’s making such a decision.
Given the Justice Department’s longstanding doctrine that a president cannot face criminal indictment while in office, Mueller suggested in his report that Congress could still act: the special counsel made more than twenty references in his report to Congress’s impeachment power. But the House Democratic leadership has spoken of impeachment proceedings in only the most tentative way, and some Democratic lawmakers have expressed outright disapproval.
In his report, Mueller described how his office had investigated eleven separate instances in which the president might have obstructed justice. Among these were the president’s alleged leaning-on and then firing of Comey, the president’s attempt to fire the special counsel, and various efforts to intimidate and discredit witnesses against him. Mueller wrote:
[I]f we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state… The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.
For each of the eleven instances of potential obstruction that Mueller considered, the special counsel evaluated each on the three criteria required by statute for there to have been a violation of the law. In each case, Mueller also weighed both the exculpatory and the inculpatory evidence. Although Mueller declined to say which of the eleven he believed was a potential criminal violation, he did signal in his report those that his office considered to be the strongest cases: in any instance that he concluded all three legal criteria were met, where there was substantial evidence in support of the allegations, and in which his investigation found little if any exculpatory or countervailing evidence to undercut a potential case, the special counsel appeared to imply that those were instances that prosecutors or Congress should act on. A careful reading of Mueller’s report appears to suggest that, in particular, the president’s alleged effort to shut down the Flynn inquiry was one that the special counsel considered among the strongest potentially chargeable instances.
Independently of the Mueller report, confidential White House records that I have been able to review, as well as correspondence between the president’s attorneys and the special counsel already made public, demonstrate that the president and his attorneys considered Trump’s alleged attempt to shut down the Flynn inquiry to be the most direct threat to Trump’s presidency.
The Mueller investigation itself was so disciplined when it came to leaks that it seemed at times as though the special counsel’s office was hermetically sealed. In fact, Mueller was briefing Deputy Attorney General Rod Rosenstein, overseeing the special counsel’s investigation, at least every two weeks, if not more often. The special counsel also made fourteen potential criminal referrals to other offices in the Justice Department regarding matters that he believed were potential serious crimes outside his investigation’s mandate. One such referral from the special counsel led the United States Attorney for the Southern District of New York to prosecute the president’s lawyer and fixer, Michael Cohen.
In the course of such cases, prosecutors and FBI agents working for Mueller often interacted with their peers in US attorneys’ offices around the country and in the DOJ’s Criminal Division and Public Integrity Section. Some of Mueller’s prosecutors, who had been detailed from other Justice Department offices, have since returned to their previous jobs or taken new positions in the department. The special counsel’s office was thus less sequestered than is generally believed.
It was against this backdrop that prosecutors working for the special counsel spoke to their peers in the Justice Department. That is how I learned what, in particular, the two Mueller prosecutors had to say about the Flynn investigation. Two people present during one such conversation provided me with detailed and consistent accounts of what the special counsel’s two prosecutors had said to them. A third person present corroborated that the conversation took place but declined to provide details of what was said.
One person who spoke to me reported grappling with the issue of what could be considered a breach of their colleagues’ confidence. But in part because of what they regarded as Attorney General Barr’s misrepresentations of the Mueller report, they believed it was important for the public and Congress to know what Mueller’s prosecutors had themselves privately concluded: that a charge of obstruction of justice was indeed merited by Trump’s actions in the Flynn matter.
Central to the defense strategy devised by the president’s legal team was a constant assertion that Trump could not have obstructed justice because the president did not know that Flynn was under investigation by the FBI when Trump allegedly pressured Comey to drop the matter. This argument was at the heart of their defense against a charge of obstruction of justice for several reasons.
First, such cases need to prove that there was an “obstructive act,” that the suspect had taken an action that could impede a criminal investigation. Second, obstruction cases depend largely on whether a prosecutor can demonstrate to a jury the motivation of the person they want to charge for trying to impede a criminal investigation, that this suspect had “corrupt intent.” If, therefore, Trump understood the legal jeopardy that Flynn faced, that would demonstrate such intent on Trump’s part; if he did not, that would demonstrate Trump had no such intent. The third essential element of any obstruction charge is that there needs to be a “nexus of a proceeding,” meaning that a person must demonstrably have understood that whomever he was aiming to protect was under criminal investigation when he attempted to impede the inquiry.
To determine whether there was an “obstructive act” in the Flynn affair, Mueller had to investigate whether the president or Comey was telling the truth about the February 2017 events. Mueller concluded that “despite [the president’s] denials, substantial evidence corroborates Comey’s account.” In other words, Mueller found evidence of an obstructive act.
Regarding corrupt intent, Mueller found evidence that this existed as well. That left only the “nexus of a proceeding” in order to check all three boxes. The special counsel wrote in his final report: “To establish a nexus to a proceeding, it would be necessary to show that the President could easily foresee and actually contemplated that the investigation of Flynn was likely to lead to a grand jury investigation or prosecution.” It was hardly surprising, then, that the president’s attorneys consistently argued that President Trump did not know this, and that they made this assertion central to their defense of the president.
On July 31, 2018, however, I reported for the Daily that the special counsel had evidence—including witness statements and White House records—demonstrating that President Trump did, in fact, know that Flynn was under criminal investigation when he spoke to Comey about Flynn. The story attracted immediate attention. Lawrence O’Donnell devoted an opening eighteen-minute segment of his MSNBC show, The Last Word, to the story that same evening. Appearing on ABC’s This Week with George Stephanopoulos on August 5, the host asked one of the president’s attorneys, Jay Sekulow, about the report. Sekulow said only, “I’m not at liberty to discuss that.”
As I reported last week, Trump’s attorneys Sekulow and Rudy Giuliani had then conducted a concerted campaign of off-the-record briefings to reporters for at least half a dozen major news organizations to deny and discredit my disclosures—an effort that could be judged largely successful in that it shut down public discussion of the issue for more than nine months. Last week, though, the Mueller report confirmed my reporting, saying this:
By the time the President spoke to Comey about Flynn, DOJ officials had informed McGahn, who informed the President, that Flynn’s statements to senior White House officials about his contacts with Kislyak were not true and that Flynn had told the same version of events to the FBI. McGahn also informed the President that Flynn’s conduct could violate 18 USC §1001. [US Code Title 18 § 1001 is the federal statute that makes it a felony to lie to the FBI or other federal investigators, a crime that Flynn did indeed later plead guilty to.]
Mueller likely assumed that nonpolitical career prosecutors in the Justice Department would examine the evidence his investigation had uncovered in order to determine whether to seek criminal charges against Donald Trump after the president’s term in office was over. But the attorney general acted peremptorily, in violation of the spirit of the special counsel statute, in declaring that President Trump did not obstruct justice. That leaves Congress as the last and only institution with the power to enforce accountability for a lawless president. As Mueller wrote:
The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.