When Jerry Nadler announced that the HJC was opening an impeachment inquiry into Trump, for the first time I felt like we might have turned the corner to get our Republic back. I felt happy after the Dems won the House, but we had no time to enjoy it b/c Trump fired Sessions the next day and we were back in the trenches again. Yesterday, though, I did take a moment to exhale. We’ve learned so much in the past month and I can now see the path to Trump’s defeat and removal from office.
So what did Robert Mueller do? He assiduously and at times emphatically confirmed the Democrats interpretation of his report’s findings, while successfully deflecting GOP conspiracy theories from entering the news cycle. People commented on his halting manner and his signs of age, but the clips the Dems got proved how effective he was. In addition, his testimony moved Dems to launch an impeachment inquiry as now over 105 Dems support an inquiry.
So how did he do it? Well, the Dems had two themes for the hearings:
Morning Session (Judiciary): Trump is a Crook.
Afternoon Session (Intel): Trump & Co are Disloyal, Liars and Grifters. The Nat Sec Threat Continues.
Mueller confirmed both themes and several factual details. In short, he blew up the myth of ‘no obstruction, no collusion’.
I’ve re-watched the hearings and have come up with some key exchanges which tell the story. This Hive thread focuses on the Judiciary Committee hearing on obstruction of justice.
Judiciary Committee Hearing
Theme: Trump is a Crook.
General Findings on Trump Obstruction
NADLER: The President has repeated claimed that your report found there was No obstruction and that it completely and totally exonerated him. But that is not what your report said is it?
MUELLER: Correct that is not what the report said.
NADLER: Now, reading from Pg 2 vol 2 of your report… you wrote…, ‘if we had confidence after a thorough investigation of the acts that the POTUS clearly did not commit OOJ we would so state. Based on the facts and applicable legal standards, however , we are unable to reach that judgment.’
Now, does that say there was no obstruction?
NADLER: In fact, you were unable to conclude that the POTUS did not commit obstruction of justice…:
…So the report did not conclude that he didn’t commit obstruction. Is that correct?
MUELLER: That is correct.
NADLER: And what about ‘total exoneration’? Did you actually totally exonerate the POTUS?
NADLER: In fact your report expressly states that it does not exonerate the POTUS.
MUELLER: It does.
NADLER: And your investigation actually found “Multiple acts by POTUS that were capable of exerting undue influence on law enforcement investigations including the RU interference and obstruction investigations: Is that correct?
NADLER: Can you explain what that finding means so that the American people can understand it? –
MUELLER: The finding means that the POTUS was not exculpated for acts he allegedly committed.
NADLER: In fact, you were talking about incidents… “in which the POTUS sought to use Official powers outside of usual channels,” to exert undue influence on the investigations. Is right?
MUELLER: That’s correct.
NADLER: …[I]s it correct that If you had concluded that POTUS committed crime of obstruction you could not publicly state that in report or here today?
MUELLER: The statement would be that “You would not indict b/c under OLC opinion a sitting POTUS could not be indicted. It would be unconstitutional.”
NADLER: So you could not state that b/c of the OLC opinion if that would have been your conclusion?
MUELLER: The OLC opinion was some guide, yes.
NADLER: Under DOJ policy the POTUS could be prosecuted for obstruction of justice after he leaves office is that correct?
NADLER: Did the POTUS refuse a request to be interviewed by your team?
ESCOBAR: Director Mueller, you wrote in your report that you, quote, “determined not to make a traditional prosecutorial judgment,” Was that in part because of an opinion by the Department of Justice Office of Legal Counsel that a sitting president can’t be charged with a crime?
BUCK: OK, but the – could you charge the president with a crime after he left office?
BUCK: You believe that he committed – you could charge the president of the United States with obstruction of justice after he left office.
Basis for Investigating and Elements of Obstruction
JACKSON LEE: [Quoting from Mueller Report], “We determined that there was sufficient factual and legal basis to further investigate potential obstruction of justice issues involving the president,” is that correct?
JACKSON LEE: Your report also describes at least 10 separate instances of possible obstruction of justice that were investigated by you and your team, is that correct?
JACKSON LEE: … And for each of those 10 potential instances of obstruction of justice, you analyzed three elements of the crime of obstruction of justice: an obstructive act, a nexus between the act and official proceeding, and corrupt intent, is that correct?
Element 1: Obstructive Act
LIEU: I’d like to now turn to the elements of obstruction of justice as applied to the president’s attempts to curtail your investigation. The first element of obstruction of justice requites and obstructive act, correct?
JEFFRIES: An obstructive act could include taking an action that would delay or interfere with an ongoing investigation.
MUELLER: That’s true.
Element 2: Nexus to an Official Proceeding
JEFFRIES: Thank you. The second element of obstruction of justice is the presence of an obstructive act in connection with an official proceeding. True?
Element 3: Corrupt Intent
JEFFRIES: ……the third element of the crime of obstruction of justice is corrupt intent. True?
JEFFRIES: Corrupt intent exists if the president acted to obstruct an official preceding for the improper purpose of protecting his own interest. Correct?
MUELLER: That’s generally correct.
JACKSON LEE: You wrote on page 178, Volume 2 in your report about corrupt intent, “Actions by the president to end a criminal investigation into his own conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct,” is that correct?
Other: No Underlying Crime or Success Necessary to be Found Guilty of Felony Obstruction of Justice
JACKSON LEE: Is it correct, as you further elaborate, “Obstruction of justice can be motivated by a direct desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area…”
JACKSON LEE: “… or to avoid” – is that true?
MUCARSEL-POWELL: Simply attempting to obstruct justice can be a crime, correct?
MURCASEL-POWELL:… You also explained that an attempt to obstruct justice does not have to succeed to be a crime, right?
Other: Overall Pattern of Behavior Important to Analyze Obstruction.
MUCARSEL-POWELL: Right, and on page 115, again, I think it’s important for everyone to note that the president’s conduct had a significant change when he realized that it was - the investigations were conducted to investigate his obstruction acts. So in other words, when the American people are deciding whether the president committed obstruction of justice they need to look at all of the president’s conduct and overall pattern of behavior. Is that correct?
MUELLER: I don’t disagree.
Examples of Obstruction of Justice that Map to Elements
• Trump Urges AG Jeff Sessions to ‘Unrecuse’ and Fire the Special Counsel
• Trump Urges WH Counsel Don McGahn to Fire the Special Counsel
• Trump Urges WH Counsel Don McGahn to Prepare False Records
• Trump Urges Corey Lewandowski to Tell Sessions to ‘Unrecuse’ and take control of the Mueller Investigation with the desire to Limit or End the Invesitgation to Protect Himself.
Element 1: Obstructive Acts
LIEU: OK. I’d like to direct you to page 97 of Volume 2 of your report, and you wrote there on page 97, quote, “Sessions was being instructed to tell the special counsel to end the existing investigation into the president and his campaign,” unquote. That’s in the report, correct?
LIEU: That would be evidence of an obstructive act because it would naturally obstruct their investigation, correct?
H. JOHNSON: Thank you. Director Mueller, I’d like to get us back on track here. Your investigation found that President Trump directed White House Counsel Don McGahn to fire you. Isn’t that correct?
RICHMOND: So it’s fair to say the president tried to protect himself by asking staff to falsify records relevant to an ongoing investigation?
MUELLER: I would say that is generally a summary.
JEFFRIES: Your investigation found evidence that President Trump took steps to terminate the special counsel. Correct?
BASS: OK. Next, the president told the White House Staff Secretary Rob Porter to try to pressure McGahn to make a false denial. Is that correct?
MUELLER: That’s correct.
Element 2: Nexus to an Official Proceeding
LIEU: OK. Let’s turn now to the second element of the crime of obstruction of justice which requires a nexus to an official proceeding. Again, I’m going to direct you to page 97, the same page of Volume 2. And you wrote, quote, “by the time of the president’s initial one-on-one meeting with Lewandowski on June 19, 2017, the existence of a grand jury investigation supervised by the special counsel was public knowledge.” That’s in the report, correct?
LIEU: That would constitute evidence of a nexus to an official proceeding because a grand jury investigation is an official proceeding, correct?
JEFFRIES: OK. President Trump tweeted on June 16, 2017, quote, “I am being investigated for firing the FBI director by the man who told me to fire the FBI director. Witch hunt.” The June 16th tweet just read was cited on page 89 in Volume 2 constitutes a public acknowledgement by President Trump that he was under criminal investigation. Correct?
MUELLER: I – I think generally correct.
JEFFRIES: The investigation found evidence quote, “that the president knew that he should not have directed Don McGahn to fire the special counsel.” Correct?.. “There’s evidence that the president knew he should not have made those calls to McGahn”, close quote.
MUELLER: I see that, yes, that’s accurate.
JEFFRIES: The investigation also found substantial evidence that President Trump repeatedly urged McGahn to dispute that he was ordered to have the Special Counsel terminated, correct?
JEFFRIES: Well thank you Mr. Mueller. Let me – let me move on in the interest of time. Upon learning about the appointment of the special counsel, your investigation found that Donald Trump stated to the then attorney general quote, “Oh my God. This is terrible. This is the end of my presidency. I’m f’ed.” Is that correct?
Element 3: Corrupt Intent
RICHMOND: So it’s accurate to say that the president knew that he was asking McGahn to deny facts that McGahn, quote, “had repeatedly said were accurate,” unquote. Isn’t that right?
RICHMOND: I believe that’s on page 119. Thank you. In other words, the president was trying to force McGahn to say something that McGahn did not believe to be true.
MUELLER: That’s accurate.
RICHMOND: I want to reference you to a slide and it’s on page 120, and it says, “substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the special counsel terminated, the president acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the president’s conduct towards the investigation.”
MUELLER: It’s accurate.
BASS: OK. Well, on page 113 it says, quote, “The president then directed Porter to tell McGahn to create a record to make it clear that the president never directed McGahn to fire you,” end quote. Is that correct?
MUELLER: That is as it’s – it’s stated in the report.
BASS: And you found, “The president said he wanted McGahn to write a letter to the file for our records.” Correct?
BASS: And to be clear, the president is asking his White House Counsel Don McGahn to create a record that McGahn believed to be untrue, while you were in the midst of investigating the president for obstruction of justice. Correct?
BASS: And Mr. McGahn was an important witness in that investigation, wasn’t he?
MUELLER: I’d have to say yes.
BASS: Did the president tell Porter to threaten McGahn if he didn’t create the written denial?
MUELLER: I would refer you to the write-up of it in the report.
BASS: In fact, didn’t the president say, quote, and this is on page 116, “If he doesn’t write a letter, then maybe I’ll have to get rid of him,” end quote?
BASS: Well, on page 116, it says the president met him in the Oval Office, quote, “The president began the Oval Office meeting by telling McGahn that The New York Times’ story didn’t look good and McGahn needed to correct it.” Is that correct?
MUELLER: That’s – as it’s written in the report, yes.
BASS: The president asked McGahn whether he would do a correction and McGahn said no. Correct?
MUELLER: That’s accurate.
NEGUSE: Isn’t it true that Ms. Hicks told your office that she went multiple times to the president to, quote, “Urge him that they should be fully transparent about the June 9th meeting,” end quote, but the president, each time, said no, correct?
NEGUSE: And the reason was because of those emails, which the president, quote, believed “would not leak.” Correct?
MUELLER: Well, I’m not certain how it’s characterized, but generally correct.
NEGUSE: And according to Ms. Hicks, the president still directed her to say the meeting was only about Russian adoption. Correct?
H. JOHNSON: And in other words, Director Mueller, the White House Counsel told the president that if he tried to remove you, that that could be another basis to allege that the president was obstructing justice, correct?
MUELLER: That is generally correct, yes.
COHEN: Despite knowing that Attorney General Sessions was supposed to be in – was not supposed to be involved in the investigation, the president still tried to get the attorney general to un-recuse himself after you were appointed special counsel. Is that correct?
COHEN: In fact, your investigation found that at some point after your appointment, quote, “the president called Sessions at his home and asked if he would un-recuse himself.” Is that not true?
MUELLER: It’s true.
COHEN: Do you recall, and I think it’s at page 78 of volume 2, the president told Sessions, “You were supposed to protect me. You were supposed to protect me,” or words to that effect?
COHEN: And is the attorney general supposed to be the attorney general of the United States of America, or the consiglieri for the president?
MUELLER: The United States of America.
DEMINGS: Director Mueller, a couple of my colleagues right here wanted to talk to you or ask you about lies, so let’s talk about lies. According to your report, page 9, Volume 1, witnesses lied to your offices and to Congress. Those lies materially impaired the investigation of Russia interference according to your report other than the individuals who plead guilty to crimes based on their lying to you and your team. Did other witnesses lie to you?
MUELLER: I think there are probably a spectrum of witnesses in terms of those who are not telling the full truth and those who are outright liars.
DEMINGS: And that lies by Trump campaign officials and administration officials impeded your investigation?
MUELLER: I would generally agree with that.
CORREA: And according to Comey, the president told him I hope – open quote, “I hope you can see your way to clear to letting this thing go, to letting Flynn go. He’s a good guy and I hope you can let it go,” close quote. Page 40, Volume 2.
CORREA: Even though the president publicly denied telling Comey to drop the investigation you found, open quote, “substantial evidence corroborating Comey’s account over the president’s.” Is this correct?
MUELLER: It’s correct.
CORREA: Thank you. And in fact, the very next day the president told the Russian Foreign Minister, open quote, “I just fired the head of the FBI. He was crazy, a real nut job. I face great pressure because of Russia. That’s taken off. I’m not under investigation,” close quote. Is that correct?
MUELLER: That’s what was written in the – written in the report, yes.
ESCOBAR: Director Mueller, at your May 29, 2019 press conference, you explained that, quote, “the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” end quote. That process other than the criminal justice system for accusing a president of wrongdoing, is that impeachment?
MUELLER: I’m not going to comment on that.
ESCOBAR: In your report you also wrote that you did not want to, quote, “potentially preempt constitutional processes for addressing presidential misconduct,” end quote. For the non-lawyers in the room, what did you mean by, quote, “potentially preempt constitutional processes”?
MUELLER: I’m not going to try to explain that.
ESCOBAR: That actually is coming from page 1 of Volume 2. In the footnote is the reference to this. What are those constitutional processes?
MUELLER: I think I heard you mention at least one. [DING, DING, DING…IT’S IMPEACHMENT FOLKS…THE IMPEACHMENT ARTICLE OF THE US CONSTITUTION IS REFERENCED IN THE FOOTNOTE THAT ESCOBAR CITES]
ESCOBAR: Impeachment, correct?
MUELLER: I’m not going to comment.
ESCOBAR: OK. That is one of the constitutional processes listed in the report in the footnote in Volume 2. Your report documents the many ways the president sought to interfere with your investigation, and you state in your report on page 10, Volume 2 that with a - interfering with a congressional inquiry or investigation with corrupt intent can also constitute obstruction of justice.
The hearing provided a good education on the general findings of the report, specific instances of obstruction of justice committed by Trump, a description of the elements of obstruction of justice and a mapping of acts to the elements of the crime.