Now that the 488 page Mueller Report is out, and we are informed that the whole “Russian collusion” story was a hoax from the get go, you may have the feeling that, at least, Mueller and his people had a basic clue as to what they were doing. If so, then you clearly haven’t yet looked at the 182 page Volume II. This is the part of the Report that supposedly addresses “obstruction of justice” by the President. The conclusion of Volume II is that, “Based on the facts and the applicable legal standards, we are unable to reach [the] judgment [that the President did not commit obstruction.]”
Let’s see. The President never fired Mueller or any of his people, or restricted the scope of their investigation, even though he had the constitutional authority to do so. The President never instructed Mueller who should or should not be charged, or for what crimes, even though he had the constitutional authority to do so. The President never claimed either attorney-client or executive privilege. The President produced over a million pages of documents. So what exactly is there about “obstruction” that supports writing this 182 pages of blather?
It’s simple. In the alternative universe that these people inhabit, it can be “obstruction of justice” if an elected official takes a constitutionally authorized action, in particular the exercise of what is known as “prosecutorial discretion,” while thinking the wrong thoughts. Indeed, in this alternative universe, it can be “obstruction of justice” if an elected official does nothing whatsoever with regard to an investigation over which he has constitutional authority, as long as somewhere along the way he happens to think the wrong thoughts. In short, everything the President does or does not do is subject at all times to an independent budget-free investigation to determine if it was done for “corrupt” reasons. If so, he is guilty of obstruction.
These people seem to be completely oblivious to the fact that the same principles could be applied to every other government executive or prosecutor in the country. Even to Mueller himself. Let’s investigate them all!
First, let’s look at what passes for “legal analysis” among this team of supposedly the top prosecutors in the land. At page 9 of Volume II, we find a section headed “Legal Framework of Obstruction of Justice.” We learn that the crime of “obstruction of justice” generally has three elements:
Three basic elements are common to most of the relevant obstruction statutes: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. See, e.g., 18 U.S.C. §§ 1503, 1505, 1512(c)(2).
But what if the supposedly “obstructive act” in question is nothing more than a duly-authorized prosecutor deciding not to prosecute, or maybe deciding to “go easy” on some defendant and not seek the maximum penalties? We come to this truly bizarre statement:
An improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority. See United States v. Cueto, 151 F.3d 620, 631 (7th Cir. 1998) (affirming obstruction conviction of a criminal defense attorney for “litigation-related conduct’); United States v. Cintolo, 818 F.2d 980, 992 (1st Cir. 1987) ("any act by any party — whether lawful or unlawful on its face — may abridge S 1503 if performed with a corrupt motive")
Well then, I guess every prosecution in the country needs to be tested for “corrupt motive” of the prosecutor. As you can see, the Mueller gang cites two circuit court of appeals-level cases for this ridiculous proposition. Neither involved the motives of a prosecutor or the President (who is the chief prosecutor of the United States); both rather involved criminal defense attorneys who were accused to preventing the FBI from carrying out investigations.
Anyway, using that one little paragraph as the base, the gang proceeds in the Report to launch into 170 pages or so of every thought President Trump had for two years plus, and every action he thought about doing but didn’t do, as if those things might have something to do with “obstruction of justice.” End result: we’re just unable to tell.
Does the supposed rule of law articulated here then apply, for example, to Kim Foxx? She’s the State’s Attorney (prosecutor) for Cook County, Illinois, who just decided to go easy on Jussie Smollett. But did she have “corrupt motive”? We need to find out! She dropped the case after talking to ex-Michelle Obama aide Tina Tchen. What promises were made? What thoughts were thought? Impanel a grand jury! How about Kim Ogg, new District Attorney of Houston, Texas? She wants to decriminalize marijuana. Can she effectively do that through prosecutorial discretion? How do we know she isn’t pocket of the marijuana industry? Time to bring in 40 investigators with an unlimited budget. Or Gavin Newsom, new Governor of California. He has put a moratorium on executions, and is talking about commuting the sentences of some hundreds in California on death row. Or Larry Krasner of Philadelphia, who is promising to use his powers of prosecutorial discretion to end “mass incarceration.” Indeed, there is a movement afoot in the country to effect massive changes in the duly-enacted criminal laws through the use of prosecutorial discretion. Principal goals include the effective de-criminalization of use of marijuana and the abolition of the death penalty. The movement goes by the name of “Progressive Prosecution.” Is the whole movement a gigantic obstruction of justice? If not, how do you distinguish these things from what Mueller was investigating about Trump?
Of course, all of these examples of decriminalization through prosecutorial discretion involve Democrats. Are the rules for them somehow different?
And how about Mueller himself? Do you have the idea that the facts laid out in the Mueller Report are the definitive version of what really occurred here? Obviously, that’s what they want you to think. Much more likely is that the Russkies got to Mueller. And what did they offer him? Maybe they agreed to interfere in the next election on behalf of whatever candidate he chooses? Maybe they offered a top job in the Kremlin as soon as this whole thing blows over? Maybe a couple of private nuclear weapons? There’s only one way we are going to get to the bottom of this, and that is to appoint a team of 40 or so, with an unlimited budget, to investigate for a few years. And then suppose that Mueller goes to some of his old buddies in the DOJ and asks them to ease up. He says that he was just exercising the due powers that he was invested with as special prosecutor. Of course they refuse his requests. But it doesn’t matter if his requests accomplish nothing. His motives were “corrupt.” It’s obstruction! Coming in to DOJ and twisting arms to get them to back off is even more obstruction.
I’m hoping that this “obstruction” nonsense keeps going right up to the next election. I suspect that President Trump is hoping the same thing.
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Francis Menton is in private practice in New York and blogs at www.manhattancontrarian.com. This post was originally written for the Manhattan Contrarian and subsequently shared here at the author's request. Visit the Manhattan Contrarian to see more posts by Francis Menton.