Byron York: Democrats think they’ve got a slam-dunk obstruction case against Trump. They don’t. – Washington Examiner

On Wednesday, House Democrats will have a chance to breathe life into the Mueller report. Relatively few Americans have read the 448-page document in which special counsel Robert Mueller concluded the evidence did not establish that the Trump campaign and Russia engaged in a conspiracy or coordination to fix the 2016 election, and also declined to conclude whether or not President Trump obstructed justice. Democrats know the report has failed to capture the public imagination, and they hope bringing Mueller to Capitol Hill for questioning will catch the nation’s attention.

“Not everybody is reading the book, but people will watch the movie,” a House Judiciary Committee official told Politico’s Playbook.

Mueller’s testimony will be divided between the Judiciary Committee and the House Intelligence Committee. Judiciary will focus on Volume II of the report, which covered allegations of obstruction, and Intelligence will pursue Volume I, on conspiracy and coordination.

Democrats on the Intel committee will have the harder job, given the failure to establish conspiracy or coordination. So it’s likely most eyes will be focused on Judiciary. Many Democrats, and many in the press, believe the Mueller report proved the president obstructed justice. The report listed a number of episodes of possible obstruction, and according to press reports, Democratic aides recently told reporters the Judiciary Committee will focus on the top five.

“Democrats…intend to dwell heavily on five of the most glaring episodes of possible obstruction of justice that Mr. Mueller documented,” the New York Times reported Saturday. “They include Mr. Trump’s direction to the former White House counsel Donald F. McGahn II to fire Mr. Mueller and then publicly lie about it; his request that Corey Lewandowski, a former campaign chief, ask Attorney General Jeff Sessions to reassert control of the investigation and limit its scope; and possible witness tampering to discourage two aides, Paul Manafort and Michael D. Cohen, from cooperating with investigators.”

It’s unclear whether there are actually five topics, or just three big topics with additional subheadings, but whatever the case, many Democrats believe they can make an overwhelming case against Trump. One committee Democrat promised to NBC that the Mueller hearing will highlight “truly shocking evidence of criminal misconduct by the president — not once, but again and again and again.”

But will it? It could be that the Mueller hearing, rather than showcasing a slam-dunk case against the president on obstruction of justice, will highlight how tenuous, subject to interpretation, and difficult to prove Mueller’s allegations really are.

What’s not there

The first thing to notice about the Democrats’ choice of evidence is what is not included. If news reports are correct, the firing of FBI director James Comey, once treated in media discussions as Exhibit A in the case for obstruction, is not among the episodes Democrats will highlight. Nor are the conversations between Trump and Comey that Comey wrote up in his famous memos, including a talk in which Trump allegedly asked Comey to go easy on Michael Flynn — another episode that was routinely discussed in the media as solid evidence of obstruction. Nor are the president’s efforts to spin the public story of the June 9, 2016 Trump Tower meeting — yet another incident often characterized as obstruction.

Also important to remember is that the Muller investigation was not actually obstructed by the president, and neither was the FBI Trump-Russia investigation that preceded it. In the report, Mueller often argued that this or that act — say, firing Mueller — could have obstructed the investigation, had it actually occurred. But it did not. So the Democrats’ accusations of obstruction will in fact be accusations of attempted obstruction.

Finally, it is important to recall that Mueller could never establish that the underlying crime he was assigned to investigate — conspiracy or coordination between the Trump campaign and Russia — actually took place. So in Wednesday’s hearing, Democrats will be showcase an investigation that was not obstructed into a crime that investigators could not establish actually happened.

And one more thing: The Mueller report includes a lengthy section headlined “Legal Defenses To The Application Of Obstruction-Of-Justice Statutes To The President.” The section includes compelling arguments against the report’s obstruction allegations. But the arguments are legal ones, some quite complicated, and it is important to keep in mind that the Judiciary Committee inquiry is not a legal proceeding, but a political one. The lawmakers are not prosecutors but rather members of Congress, some of whom are seeking to impeach the president. It is an entirely political process, and whether or not to impeach will be a political decision. So a lot of the legal analysis that dominates cable TV coverage won’t really apply; the president’s defenders can make commonsense defenses that appeal to the vast majority of Americans — 324 million or so — who are not lawyers.

In any event, Democrats are determined to go forward, and the Mueller hearing will consume Washington’s attention. So here is a look at the areas Democrats reportedly plan to highlight:

1. Trump and firing Mueller

In the first months of Trump’s presidency, Comey privately told the president that he, Trump, was not personally under investigation in the Russia probe. One of the main reasons Trump fired Comey was that Comey would not say the same thing in public, and indeed left the impression in public that Trump was under investigation. That fed a never-ending cycle of negative press coverage which irritated Trump no end.

The Mueller report contends that Trump’s behavior changed dramatically beginning on June 14, 2017, when the Washington Post reported that Mueller — in office for less than a month — was investigating Trump personally for obstruction of justice. It was then, Mueller suggests, that Trump began to obstruct the obstruction investigation, including ordering the firing of Mueller. This is the special counsel’s brief summary of what happened:

The Acting Attorney General appointed a Special Counsel on May 17, 2017, prompting the President to state that it was the end of his presidency and that Attorney General Sessions had failed to protect him and should resign. Sessions submitted his resignation, which the President ultimately did not accept. The President told senior advisors that the Special Counsel had conflicts of interest, but they responded that those claims were “ridiculous” and posed no obstacle to the Special Counsel’s service. Department of Justice ethics officials similarly cleared the Special Counsel’s service. On June 14, 2017, the press reported that the President was being personally investigated for obstruction of justice and the President responded with a series of tweets criticizing the Special Counsel’s investigation. That weekend, the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.

Mueller reports that Trump was deeply upset by the appointment of Mueller, believing the existence of a special counsel would hobble his presidency and make it politically impossible for him to govern. In one of the most-reported scenes in the report, Trump was in the Oval Office when he learned of the appointment. “Oh my God. This is terrible,” Trump said, according to the report. “This is the end of my presidency. I’m fucked.”

Almost immediately, Trump began telling associates that he believed the new special counsel, Mueller, had conflicts of interest. Just days earlier, Trump had interviewed Mueller for the position of FBI director. Trump also said Mueller’s law firm represented some people close to Trump. And the president said there had been a dispute over membership fees when Mueller belonged to Trump’s golf club in Virginia. The Justice Department decided Mueller had no conflicts that prevented his service, but Trump remained adamant that Mueller was conflicted.

Trump discussed with some associates the possibility of firing Mueller. Then came June 14 and the Post report. Three days later, on June 17, the report says, Trump “called McGahn and directed him to have the special counsel removed” — the central act of alleged obstruction that House Judiciary Democrats want to showcase.

Trump called McGahn twice that day. During both calls, Mueller says that Trump “directed [McGahn] to have the special counsel removed.” Mueller’s evidence for what was said — and thus for the obstruction allegation — comes entirely from McGahn. “On the first call,” Mueller wrote, “McGahn remembered that the president said something like “You gotta do this. You gotta call Rod.”

Those words — Trump “said something like” — do not inspire confidence in the accuracy of the quotes that follow. And “You gotta do this. You gotta call Rod” are the only quotes, or semi-quotes, that Mueller cites from the first call. The report says McGahn told the president he would see what he could do, but in fact McGahn “did not intend to act on the request.”

Later, Trump called again to follow up. In that call, according to the Mueller report, “McGahn recalled that the president was more direct, saying something like, ‘Call Rod, tell Rod that Mueller has conflicts and can’t be the special counsel.'” That’s another semi-quote — “saying something like.” But Mueller also says that McGahn “recalled the president telling him ‘Mueller has to go’ and ‘Call me back when you do it.'” Mueller says McGahn “left the president with the impression that McGahn would call Rosenstein,” but had no intention of doing so and was only trying to get Trump off the phone.

McGahn did not call Rosenstein. Instead, he called his personal lawyer, and later his chief of staff, and told them he had decided to resign. McGahn did not tell the chief of staff what Trump wanted because, according to Mueller, he wanted to keep her out of it.

Later that same day, McGahn called then-White House chief of staff Reince Priebus, and then-White House adviser Steve Bannon to tell them he intended to resign. Again, McGahn did not tell either Priebus or Bannon what Trump wanted, although Priebus remembers that McGahn told him the president asked him to “do crazy shit.”

There was not a third phone call from Trump; the president did not follow up on whatever he told McGahn. McGahn did not resign. Rosenstein was not called. Mueller did not resign. The investigation continued unimpeded.

In late November and early December 2017, McGahn began an extensive series of interviews with Mueller’s prosecutors. In late January 2018, the New York Times, citing “four people told of the matter,” published a story with the headline, “Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit.”

On February 5, 2018, according to Mueller, Trump told the White House staff secretary, Rob Porter, that he, Trump, believed McGahn had leaked to the media. Trump wanted Porter to tell McGahn “to create a record to make clear that the president never directed McGahn to fire the special counsel.” The president, focusing on the word “fired” because it was in the Times headline, wanted McGahn “to write a letter to the file ‘for our records.'” Porter took the president’s message to McGahn, who “shrugged off” the request, according to the report. “McGahn told Porter that the president had been insistent on firing the special counsel,” the report said, citing an interview with Porter.

On February 6, Trump called McGahn to a meeting in the Oval Office with John Kelly, who was by then the chief of staff. McGahn had a detailed memory of that meeting. “McGahn recalled the president said, ‘I never said to fire Mueller. I never said ‘fire.’ This story doesn’t look good. You need to correct this. You’re the White House counsel.'”

McGahn said that he told the president that the Times’ account of the firing order was accurate. “The president asked McGahn, ‘Did I say the word ‘fire’?” the report said. “McGahn responded, ‘What you said is, ‘Call Rod, tell Rod that Mueller has conflicts and can’t be the special counsel.'”

“I never said that,” Trump responded, again according to McGahn’s account. “The president said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do,” the report said. “McGahn told the president he did not understand the conversation that way and instead had heard, ‘Call Rod. There are conflicts. Mueller has to go,'” according to the report, again citing McGahn’s account. Trump asked McGahn to “do a correction,” according to McGahn, and McGahn refused.

Kelly, who was in the meeting, was barely mentioned. But the report does say that Kelly recalled McGahn telling him, Kelly, that he, McGahn, really “did have that conversation” about firing Mueller. Later, Mueller reports, “the president’s personal counsel called McGahn’s counsel and relayed that the president was ‘fine’ with McGahn.”

That is pretty much the entirety of the fire-Mueller obstruction allegation.

In each case in which he alleges obstruction, Mueller analyzes the story in light of the “three basic elements [that] are common to most of the relevant obstruction statutes.” They are: “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”

Mueller argues that if Trump had fired Mueller, it could have been an obstructive act because even if the firing simply led to the investigation continuing under a new prosecutor, the investigation might have suffered some delay. In addition, a firing — if it had happened — might possibly “chill the actions” of any replacement special counsel. But of course the firing did not happen.

Mueller also argues that Trump’s request for McGahn to create a record denying that Trump had ordered him to fire Mueller could have been obstructive if it “had the natural tendency to constrain McGahn from testifying truthfully.” But of course, by that time McGahn had already told his story to Mueller’s prosecutors.

Mueller expresses faith in McGahn’s account because McGahn had a “clear recollection” of the matter and was “a credible witness with no motive to lie or exaggerate.” What bits and pieces of evidence Mueller could glean from other sources were consistent with McGahn’s account, Mueller says.

As far as a nexus to an official proceeding was concerned, Mueller says Trump “knew his conduct was under investigation” by a prosecutor — Mueller — who “could” present evidence to a grand jury. Therefore, there was a connection.

As far as corrupt intent was concerned, Mueller says there is “substantial evidence” that Trump tried to remove Mueller because Mueller was investigating Trump’s conduct. On the other hand, Mueller notes that as late as the end of January 2018, when the Times story was published, “there is some evidence that…[Trump] believed he had never told McGahn to have Rosenstein remove the special counsel.”

“The president told Priebus and Porter that he had not sought to terminate the special counsel,” the report says, “and in the Oval Office meeting with McGahn, the president said, ‘I never tried to fire Mueller. I never said ‘fire.'” That evidence could indicate that the president was not attempting to persuade McGahn to change his story but was instead offering his own — but different — recollection of the substance of his June 2017 conversations with McGahn and McGahn’s reaction to them.”

Mueller knocks down that explanation in the next paragraph, saying the evidence shows Trump really was trying to fire Mueller and that Trump’s position “runs counter to the evidence.”

But of course the House Judiciary Committee is not a court of law. While Democrats will argue that Trump is guilty of obstruction in the McGahn-Mueller matter, Republicans will have substantial defenses: The firing never happened. The investigation was not obstructed. Trump could have been venting in the phone calls (something he did every day), and perhaps there was some misunderstanding between the president and McGahn. It is not unusual for Donald Trump to say one thing and a person around him to hear another. Given that Mueller relied so heavily on McGahn’s account, such a misunderstanding, if it occurred, could become the centerpiece of the allegation. And, of course, there was no underlying crime of conspiracy or coordination, which is what the investigation was supposed to be about.

Given that, it seems hard to believe that, even with a Mueller appearance, Democrats will be able to convince anyone beyond the people who already believe Trump is guilty of obstruction. Others may be baffled by the sheer complexity of the case. If Democrats want to turn the Mueller report into a movie, it will be very complicated movie.

2. Trump, Lewandowski, and Sessions

Next on the Democratic agenda for the Mueller hearing, if the news accounts are correct, is the president’s request that Corey Lewandowski “ask Attorney General Jeff Sessions to reassert control of the investigation and limit its scope.” That was basically a continuation of Trump’s expressions of frustration at the expansion of the Mueller probe to include Trump personally.

According to the report, on June 19, 2017 — two days after the phone calls with McGahn — the president met one-on-one in the Oval Office with Lewandowski. In that meeting, according to Mueller, Trump “dictated a message to be delivered to Attorney General Sessions that would have had the effect of limiting the Russia investigation to future election interference only.” Lewandowski, Mueller said, “wrote as fast as possible to make sure he captured the content correctly.”

Trump wanted Lewandowski to give the message to Sessions, who would then deliver it as a public statement. This is what Trump told Lewandowski to tell Sessions to say:

I know that I recused myself from certain things having to do with specific areas. But our POTUS…is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history. Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.

Lewandowski arranged a meeting with Sessions to deliver the message, but Sessions canceled “due to a last minute conflict,” according to the report. A month passed, and Trump said nothing more about the matter to Lewandowski. During that time, Lewandowski decided to ask Rick Dearborn, a White House official who used to work for Sessions, to deliver the message.

On July 29, 2017, Trump and Lewandowski met again, and Trump asked about the status of his now month-old request. “Lewandowski told the president that the message would be delivered soon,” according to the report. A short time later, Lewandowski ran into Dearborn and actually gave him the message for Sessions. Dearborn later told Mueller that “being asked to serve as a messenger to Sessions made him uncomfortable,” according to the report. He decided not to give the message to Sessions and later told Lewandowski he had “handled” the situation. As he had with the fire-Mueller situation, Trump apparently let the matter go.

The Lewandowski matter was another act of alleged obstruction that did not happen. The message was not delivered. The investigation was not obstructed.

In addition, there is the question of what Trump’s dictated message actually meant. Trump wanted Sessions to say that he would “let the special prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.” Mueller says that was intended to “limit [Mueller’s] jurisdiction to future election interference.” Mueller continues: “The president’s directives indicate that Sessions was being instructed to tell the special counsel to end the existing investigation into the president and his campaign, with the special counsel being permitted to ‘move forward with investigating election meddling for future elections.'”

It’s a confusing portion of the report. For one thing, how does one investigate “future election interference”? And was Trump telling Lewandowski to tell Sessions to tell Mueller “to end the existing investigation into the president and his campaign”? Trump’s words could just as easily be interpreted as an intention to allow the Russia investigation to continue, which could have the effect of preventing future interference. One could infer that Trump also meant that he would forbid Mueller from continuing to investigate alleged obstruction of justice, but of course that did not happen. Trump brought it up once. He waited a month and brought it up again. Then he dropped it.

The problem with the Lewandowski charge, which Democrats apparently believe is among the strongest against the president, is that it is murky. It is simply not clear what the president meant when he dictated the message he wanted Lewandowski to give to Sessions about Mueller. In the political forum of a House Judiciary Committee meeting, Republicans will probably be able to raise so many questions about the episode that the whole thing seems indecipherable.

3. Trump, Manafort, and Cohen

The last area which Judiciary Committee Democrats will highlight concerns statements Trump made, mostly in public, about Manafort and Cohen. Democrats will argue that they constitute witness tampering.

On October 27, 2017, Mueller indicted Manafort on a variety of charges, none of which involved conspiracy or collusion between Russia and the Trump campaign. Citing an interview with Gates, who cooperated with the investigation, the Mueller report says that in January 2018, “Manafort told Gates that he had talked to the president’s personal counsel and they were “going to take care of us.” The report then lists a number of occasions that Trump said things publicly that were critical of the prosecution and supportive of Manafort. Mostly, Trump complained that Manafort was being treated unfairly. Trump was not alone in holding that opinion. Some observers who did not defend Manafort’s behavior — he was convicted of evading taxes on millions of dollars in income — were still disturbed by actions like the FBI’s early-morning guns-drawn raid to execute a search warrant at Manafort’s home or the holding of Manafort in solitary confinement.

Mueller also suggests that Trump and his lawyer Rudy Giuliani dangled a pardon in front of Manafort in exchange for Manafort’s refusal to cooperate with Mueller. Later, during Manafort’s trial, Mueller suggests, Trump’s statements on Twitter might have been intended to influence the jury.

As far as Cohen is concerned, Mueller spends many pages trying to nail down precisely when the Trump Tower Moscow project died, and what Cohen told Congress about it, and what role, if any, Trump played in it all. Mueller also goes into positive things Trump said about Cohen when it still appeared that Cohen was not cooperating with authorities, and how Trump called Cohen a “rat” when he decided to cooperate with the investigation in hopes of receiving a shorter prison sentence.

On the testimony about Trump Tower Moscow, Mueller concluded that “the evidence available to us does not establish that the president directed or aided Cohen’s false testimony.” On the question of calling Cohen a “rat” — many observers noted that Trump’s language evoked images of mobsters — Mueller wrote that the evidence “could support an inference that the president used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermining Cohen’s credibility once Cohen began cooperating.”

Possibly. Anyone ready Mueller’s analysis of the Manafort and Cohen statements will be struck by how much sheer guesswork went into Mueller’s speculation about Trump’s motives. At Wednesday’s hearing, Republicans will likely argue that anyone, including a president, has the right to point out unfair treatment. In a larger sense, they will argue that prosecutors can be overly sensitive to criticism, and that anyone, including a president, has a right to criticize a prosecution without facing prosecution for doing so. As with the other issues, the debate will likely bounce back and forth between legal argument and commonsense arguments.

Last chance?

The Mueller hearing on obstruction is a kind of second choice for Democrats. Before the Mueller report was released, many firmly believed it would prove the existence of conspiracy or coordination, more commonly known as collusion. When that did not happen, Democrats and their allies in the media pivoted to the obstruction issue, with some embracing obstruction as the grounds on which Trump could be removed from office.

Their strategy did not exactly ignite public excitement. Now, Democrats seek to make a movie of Mueller’s findings to win public attention. But some movies bomb. Without the sort of solid, incontrovertible evidence they can sell to the public, Democrats face an uphill climb, no matter how much attention the Mueller hearing attracts on Wednesday.