The Hill is reporting that Robert Mueller did not conclude there was obstruction of justice committed by the President because of an inability to determine intent.
People familiar with the matter reportedly told the Post that the report will show that Mueller could not reach a conclusion on whether President Trump obstructed justice because it was too difficult to determine the president’s intent. They added that some of Trump’s actions could be interpreted innocently, according to the Post.
Despite how The Hill (and others) are framing this, make no mistake, the fact that intent could not be determined means they lacked evidence to do so.
For some of us, this has been obvious for at least two years now. I can remember opining on as early as 2017 on the fact that even if you thought mean tweets were obstruction of justice (they aren’t by any written statute), there’s noway you’d ever be able to prove intent. Even the Flynn conversation all the way back in early 2017 centered around Trump saying he “hoped” something.
The obstruction angle never made sense. Here are the three statutes in question, as compiled by The Daily Wire in the summer of 2017 when this issue first arose.
1. 18 USC 1503: This “omnibus” clause covers “corruptly or…by any threatening letter or communication influenc[ing], or imped[ing] or endeavor[ing[ to influence, obstruct, or impede, the due administration of justice.” But the clause also requires a pending judicial proceeding – and as far as we are all aware, there is none. Furthermore, the Supreme Court is quite exacting on the application of this law – a prosecutor would need to prove that Trump’s conduct materially impeded the investigation, which even Comey has said didn’t happen.
2. 18 USC 1512(c): This provision of law covers anyone who “obstructs, influences, or impedes an official proceeding, or attempts to do so.” It is not clear that an FBI investigation is an “official proceeding,” and proving intent is difficult in any case. And it’s not enough to show intent to violate the subsection – you have to take a “substantial step toward the accomplishment of that goal.”
3. 18 USC 1519: This provision covers destroying evidence related to a federal investigation. There are no accusations that Trump destroyed evidence. Unless Trump had tapes and destroyed them, the statue simply doesn’t apply.
This is why the bar was always going to be unreachable, no matter how much wish-casting happened on MSNBC on in the pages of The New York Times. Trump never materially impeded the investigation. That’s the first point in his favor. How do we know that? Ironically, because Andrew McCabe and James Comey both said so in public testimony.
But even in a world where the above wasn’t true, you’d need to prove intent and there was simply ample reason for Trump to rant about the FBI, Mueller probe, James Comey, etc. aside from trying to shut down the investigation. Given the fact that the investigation could never have been logically impeded by mean tweets, it stands to reason that the intent was to shape opinion on the political front, which, last I checked, is still legal in this country.
Regardless of the arrived conclusions, the report will include the “evidence” looked at in regards to obstruction, so there will be plenty of “omgzz, look at this tweet, how could they not charge him!” hot takes coming yet.
However, the lightly redacted report will detail evidence collected during the probe, including an analysis of tweets, “private threats” and other reported episodes at the center of Mueller’s investigation, according to the paper.
We are going to find out a lot more about this in a few hours. The media are already gnashing their teeth over the fact that Barr will (gasp!) answer questions about the preparation of the report. They are going to get even more belligerent when it becomes clear the report doesn’t contain the bombshells they’ve so desperately wanted.
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