Updated on July 24 at 1:41 p.m. ET
There’s a logical disconnect in volume 2 of Special Counsel Robert Mueller’s report that is unmissable to any careful reader.
As Mueller explains in the report, a charge of obstruction of justice requires three elements: an obstructive act, a nexus with an official proceeding, and corrupt intent. And in the report, Mueller’s team laid out several cases where President Donald Trump committed an obstructive act, in connection with an official proceeding, with what Mueller’s team concluded could be a corrupt intent.
But because Mueller had decided at the outset of his report that he could not and would not charge the president with crimes, thanks to Justice Department guidance and in the interest of fairness, Mueller did not make the otherwise obvious jump from laying out the ways that Trump’s behavior met the three-prong test to actually stating that Trump obstructed justice.
During today’s House Judiciary Committee hearing, Democratic Representative Hakeem Jeffries sought to demonstrate the disconnect by walking Mueller through the three-prong test.
“Let me refer you to page 87 and 88 of volume 2 where you conclude the attempt to remove the special counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand-jury proceedings that might flow from the inquiry. Correct?” Jeffries asked.
“Yes,” Mueller said, confirming the obstructive act.
“Your report found on page 89, volume 2, that substantial evidence indicates that by June 17, the president knew his conduct was under investigation by a federal prosecutor who would present any evidence of federal crimes to a grand jury. True?” Jeffries asked.
“True,” Mueller said, confirming the nexus to an official proceeding.
Jeffries then moved on to the third element, corrupt intent, and Mueller once again effectively affirmed the point:
Jeffries: Is it fair to say the president viewed the special counsel’s investigation as adverse to his own interest?
Mueller: I think that generally is true.
Jeffries: The investigation found evidence, quote, “that the president knew that he should not have directed Don McGahn to fire the special counsel.” Correct?
Mueller: Where do you have that quote?
Jeffries: Page 90, volume 2. “There’s evidence that the president knew he should not have made those calls to McGahn,” closed quote.
Mueller: I see that. Yes, that’s accurate.
Mueller, seeing the trick, tried to cut it off. “Let me just say, if I might, I don’t subscribe necessarily to your—the way you analyzed that. I’m not saying it’s out of the ballpark, but I’m not supportive of that analytical charge,” he said.
During the next round of Democratic questions, Representative Ted Lieu executed a similar maneuver, and Mueller once again tried to put the cat back in the bag: “The only thing I want to add is going through the elements with you does not mean I subscribe to the—what you’re trying to prove through those elements.”
But by then, the point was made: Mueller himself had acknowledged all the ways that Trump’s behavior met all three prongs of the test for obstruction of justice. Under questioning from Lieu, Mueller also seemed to imply that he would have indicted Trump if not for Justice Department rules.
“I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?” Lieu asked.
“That is correct,” Mueller said—an answer that seemed to contradict the reasoning laid out in the report itself. In fact, Mueller corrected himself at the start of his afternoon testimony to the House Intelligence Committee, saying, “That is not the correct way to say it. As we say in the report and as I said at the opening, we did not reach a determination as to whether the president committed a crime.”
In any case, the special counsel had his reasons for not charging Trump, but that doesn’t mean anyone who’s not a Justice Department official is obliged to stick to the same guidelines—especially when the evidence of obstruction is plain.
Perhaps even more striking than the exchanges with Jeffries and Lieu was a set of questions from Representative Ken Buck, a Colorado Republican. Buck seemed to be posing his questions as hypotheticals, and Mueller may have been answering them as such—confirming only what, in theory, might happen to a hypothetical president, not commenting on the specifics of the case at hand. But they nevertheless produced one of the more surprising sound bites of the morning.
“Could you charge the president with a crime after he left office?” Buck asked.
“Yes,” Mueller said.
“You believe that he committed—you could charge the president of the United States with obstruction of justice after he left office?”
“Yes,” Mueller said. This time, he had no clarification to offer.
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