The Village Lawyer

 

The Village Lawyer, by Pieter Breughel the Younger, 1624, Web Gallery of Art:, via Wikimedia Common.

Emptywheel gives a pretty clear legal account of the foreground lies the key passages from the memo Bully Barr commissioned from his office to "advise" him not to charge Trump with obstruction of justice (i.e., the advice he'd ordered up from them)

To our knowledge, the Special Counsel's investigation of potential obstruction is not similar to any reported case that the Department has previously charged under the obstruction-of- justice statutes. The Report identifies no obstruction case that the Department has pursued under remotely similar circumstances, and we have not identified any either. Of course, any investigation concerning the President would be exceptional, but the President is hardly the only public official who could be subject to investigation. The Department has investigated the potential misuse of official authority, including the obstruction of official proceedings. in a host of different circumstances. 

The Special Counsel's obstruction theory would not only be novel, but, based on his own analysis, it would also be unusual because Volume I of the Special Counsel's Report is conclusive: that the evidence developed “was not sufficient to charge that any member of the Trump Campaign [including the President] conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.” Given that conclusion, the evidence does not establish a crime or criminal conspiracy involving the President toward which any obstruction or attempted obstruction by the President was directed. It would be rare for federal prosecutors to bring an obstruction prosecution that did not itself arise out of a proceeding related to a separate crime. Moreover, much of the President's potentially obstructive conduct amounted to attempts to modify the process under which the Special Counsel investigation progressed, rather than efforts to impair or intentionally alter evidence (documentary or testimonial) that would negatively impact the Special Counsel's ability to obtain and develop evidence.

Volume I couldn't be "conclusive" on all the possible Vol. I cases, she explains, because the investigation of at least one of Trump's associates, Roger Stone, over his evident involvement in the Russian hack of the Democratic emails. was still going on at the time. And yet...

But it seems to me there's a point beyond the legalistic argumentation that's getting missed here, which is in the first place that the obstruction of justice statute has a purpose; namely, you know, to deter or punish people who obstruct justice, and that if there was a crime or criminal conspiracy involving the president, then the reason Mueller's team failed to establish it was that justice had effectively been obstructed—the obstruction succeeded!

That's why the statute doesn't mention an underlying crime, only the proceeding, typically the investigation, that gets interfered with (prosecution must show that "The defendant knowingly engaged in intimidation, physical force, threats, misleading conduct, or corrupt persuasion toward another person; and the defendant had the intent to influence, delay, or prevent testimony or cause any person to withhold a record, object, document, or testimony from an official proceeding"), because if the obstruction is successful, the prosecutor won't be able to show that the crime took place. 

It's like the way murder statutes don't mention that the victim's life will be ruined.

In the executive summary of vol. I, Mueller complains very openly about how this happened in the investigation. He was able to convict Flynn, Papadopoulos, Cohen, and Manafort of lying, but not for the lies about the conspiracy with Russian intelligence (including those of Stone and Trump Jr.), which  "materially impaired" the investigation of the conspiracy, along with other kinds of concealment.

(The ongoing matter in redacted bit is the investigation of Stone.)

If not for these obstructions the facts might be "cast in a new light".

Trump's lies and other attempts and concealment and interference are reserved for volume II, and they certainly involve "intimidation, ... threats, misleading conduct, or corrupt persuasion" in order to "influence, delay, or prevent testimony" in an official proceeding:

• the effort after the firing of Flynn to pressure Comey to "go easy on Flynn",
• the effort to get K.T. McFarland to submit a letter denying that Trump had told Flynn what to say to Ambassador Kislyak,
• the effort to stop Attorney General Sessions from recusing himself from the investigation (clearly in the belief that he could command more loyalty from Sessions than DAG Rod Rosenstein, who too charge of the investigation when Sessions recused himself),
• the pressure in March 2017 on DNI Dan Coats, CIA director Mike Pompeo, and NSA director Mike Rogers to state publicly that Trump had no connection to Russian election interference,
• the pressure on FBI director Comey to make the same assurance, and firing him when he failed to so so in a congressional hearing,
• the effort to stop the appointment of Special Counsel Robert Mueller (by which we were put on notice that Trump was now definitely under investigation) by spreading the false rumor that Mueller had conflicts of interest,
• the ordering of White House counsel Don McGahn to fire Mueller (which McGahn refused to do),
• the renewed effort (using his former campaign manager Corey Lewandowski as an intermediary, then Rick Dearborn when Lewandowski demurred) to make Session take over the investigation and force Mueller to end it, or limit its terms of reference to "future election interference",
• the dictation to Trump Junior of a false statement about what happened in Junior's meeting of June 9 2016 in Trump Tower with Putin representatives led by Natalya Veselnitskaya, and his denial (through his "attorney" Rudy Giuliani) that he had done that,
• the order to McGahn to deny that Trump had ordered McGahn to fire Mueller,
• the effort to stop McGahn from taking notes ("What kind of lawyer takes notes?"),
• the effort to maintain an influence on Flynn after Flynn withdrew from a joint defense agreement with Trump and agreed to cooperate with the Special Counsel, alternating between his own cajoling (asking for a "heads up" if he knew any "information that implicates the president") and threats from Giuliani,
• the public dangling of a pardon on Manafort during his trial, and praise after his conviction for not "flipping", which "almost ought to be outlawed",
• the public praise for Stone for the "guts!" he displayed when he decided not to "testify against Trump",
• the threats issued against Michael Cohen after he agreed to cooperate with the government, calling him a "rat", and against his family, which Trump accused of committing crimes.

These—in digest form, but straight from Mueller II:3-6—are not the behaviors of a man who wants an investigation to carry on unhindered. These are the behaviors of a man who would definitely prefer to see it hindered and is doing his best to hinder it. 

And while it's safe to say he mostly kind of failed in his specific aims in most of these moves—he couldn't save Flynn or Manafort without the pardons, he couldn't entirely hide the truth about the June 9 meeting, he couldn't stop the investigation until he got an attorney general working for a Higher Power (it's just occurred to me that Leonard Leo must have picked Barr for the job—I don't think I've heard it before and certainly haven't seen any evidence), all the particular things really did were among the things that made the investigation, in the end, ineffective. 

I mean very specifically that Flynn, Manafort, and Stone, and no doubt Junior deserves a dishonorable mention, though Mueller thought he was too dumb to prosecute, practiced the omertà that Trump demanded of them, and successfully prevented Mueller from making the kind of volume I case he should have been able to make, for a conspiracy between the Trump camp and the Russian active measures, and the appearance of Barr defeated Mueller's Plan B, and justice absolutely was obstructed. And the case for that against Trump and others, laid out so clearly in Mueller's report, absolutely should have been prosecuted.

Or maybe there was no Russia conspiracy and Trump was just fucking with us all for fun? This is not rocket science!