In the wake of Special Counsel Robert Mueller’s expansive case for President Donald Trump’s obstruction of justice, as revealed in the newly public report, a common theme is emerging among much of the commentariat that Trump’s obstruction of the Russia investigation was largely futile.
It was exemplified by Philip Klein’s take in the Washington Examiner, who wrote that “those surrounding President Trump managed to protect him from his own worst instincts by refusing to carry out actions that would have significantly strengthened the obstruction of justice case against him.”
But this is wrong. Attempting to obstruct justice, such as giving orders to quash the special counsel probe as Trump did, is just as much a crime as actually obstructing justice. Your aids refusing to carry out your corrupt orders doesn’t make you less corrupt.
Perhaps even more importantly, though, we have no idea how successful Trump was at obstructing justice.
Consider an extremely important caveat in the summary of the first volume of the report, which focuses on the Russian election interference, the Trump campaign’s links to Russia, and potential conspiracy. Mueller could not establish that a conspiracy occurred; however, he noted that
Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above.…some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.
And he explained that
while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.
In other words, while Mueller didn’t demonstrate that a conspiracy occurred, he leaves open the possibility that it did. And he a cover-up may be the reason he didn’t find it.
If a conspiracy existed, the most plausible nexus for such a crime would be Trump Campaign Chair Paul Manafort, who used Deputy Campaign Chair Rick Gates to send internal polling data to Konstantin Kilimnik periodically throughout the campaign. Gates, according to Mueller, used WhatsApp and deleted the messages after they were sent. Gates believed Kilimnik was a Russian “spy”; the FBI has assessed that he has ties to Russian intelligence. The report also says that Manafort believed the polling data would make its way back to Oleg Deripaska, a Russian oligarch to whom Manafort was indebted.
And when Manafort was supposedly cooperating with the special counsel, he lied when he was asked about his interactions with Kilimnik, rendering him entirely unreliable.
At one meeting, Gates said that the three men discussed key battleground states in the 2016 election: Wisconsin, Minnesota, Michigan, and Pennsylvania. Manafort did not offer that fact — which may mean it didn’t indeed happen, or that Manafort thought it was worth hiding.
Ultimately, the report noted: “The Office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period.”
During a hearing with Judge Amy Berman Jackson, one of Mueller’s prosecutors said the meetings with Kilimnik went to the “heart” of the probe.
So all this is clearly important. What does it have to do with Trump?
In Volume II of the report, Mueller revealed that he considered Trump’s behavior toward Manafort potentially obstructive conduct:
the President has taken other actions directed at possible witnesses in the Special Counsel’s investigation, including Flynn, Manafort, [REDACTED] and as described in the next section, Cohen. … During Manafort’s prosecution and while the jury was deliberating, the President repeatedly stated that Manafoft was being treated unfairly and made it known that Manafort could receive a pardon.
The jury in Manafort’s case deadlocked on 10 out of 18 counts, and juror has since revealed that this was because of a single holdout juror who did not agree with the rest on the undecided charges. The mistrial didn’t end up affecting the totality of the case against Manafort, but if that holdout juror resisted finding Manafort guilty because of Trump’s comments, he would have successfully obstructed justice.
More importantly, though, is the fact that Trump made it clear Manafort could be pardoned. The report explained:
With respect to Manafort, there is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government. The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to “flip” and cooperate with the government.…In light of the President’s counsel’s previous statements that the investigations “might get cleaned up with some presidential pardons” and that a pardon would be possible if the President “come[s ] to the conclusion that you have been treated unfairly,” the evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.
This is particularly relevant because, in the same hearing mentioned above, one of Mueller’s prosecutors argued that the special counsel believes part of Manafort’s reasons for lying to the special counsel about the Kilimnik meetings was to increase his chances of getting a pardon.
So what does this all tell us?
Mueller isn’t confident that new evidence wouldn’t “shed additional light” on the question of a conspiracy with Russia. Mueller was never able to determine why Manafort was sending polling data to someone believed to be a Russian spy, though he thought this matter was central to his probe. He also believes Trump’s dangling of a pardon for Manafort may have been an instance of obstructing justice, and he believes that Manafort may have lied about a matter of central importance of the probe — one that could have implicated a criminal election-related conspiracy — in an effort to get that dangled pardon. By dangling a pardon, Trump could have kept quiet the best source of information about a conspiracy with Russia.
We don’t know if Trump’s obstruction worked. But Mueller leaves that possibility open, and if it’s true, it could be obstruction of a historical scale.