DANIEL VAUGHAN: Mueller’s report shows no intent from Trump or Democrats

April 19, 2019

All the media speculation and hyperventilating can finally come to an end — Robert Mueller’s report is officially here.

There are two volumes to the Mueller report. Volume I deals with the overarching question of the entire investigation: Did the Trump campaign coordinate — or “collude,” to use the inaccurate media term — with Russia in the 2016 election? The second volume delves into whether President Trump committed obstruction of justice during the investigation.

Perhaps the most striking part of the Mueller report, after two years of constant media drumbeat around “collusion,” is how thoroughly finished that narrative is now that the report has been released.

Generally speaking, in criminal law, you have to have two elements to have a crime: actus rea and mens rea. Actus rea refers to the action a person takes. Mens rea refers to the intent behind that action. A person generally has to knowingly, purposefully, recklessly, or negligently take action to prompt a criminal charge; if you lack either element, you don’t have a crime.

You’ll find plenty of actus rea in the Mueller report — plenty of meetings, phone calls, or tweets, that suggest potential wrongdoing. But the report makes it clear throughout that there’s no mens rea, or intent, behind the major players in this investigation, such as Trump and his family.

Contrastingly, there is plenty of intent and action on the part of the Russian actors Mueller charged. For example, on page 175 of Volume I, the report lists off 13 Russian national and three Russian shell corporations all linked with a specific action and intent to illegally affect the 2016 election.

But the report goes on to note that they did not indict any Trump campaign official or other U.S. person on these charges.

“That is because the investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian nationals engaged in the criminal conspiracy,” the report reads.

The report goes on to note again on page 180 that there were numerous contacts between Trump campaign officials and Russian officials, including specific instances of people directly connected to the Russian government having a connection with the Trump campaign. But the report concludes:

The Office ultimately concluded that, even if the principal legal questions were resolved favorably to the government, a prosecution would encounter difficulties proving that Campaign officials or individuals connected to the Campaign willfully violated the law. [emphasis added]

Note the use of the word “willfully” — that indicates that although Mueller and his team found an action, there’s no intent. In criminal law, generally, you must prove both action and intent.

That leaves us with the far more interesting Volume II, which begs the question of obstruction of justice. I say this part is more interesting because if you enjoy novel questions of legal theory, delving into whether or not the president of the United States can commit obstruction of justice using powers he is granted in the U.S. Constitution is about as novel as you can get.

On the point of obstruction, Mueller did not come to a prosecutorial decision, as we’ve known from the Barr memo. But I disagree with attorney Andy McCarthy, who says the decision not to prosecute is a disgrace, and Mueller wrongly punted the ball.

This is because Mueller was tasked with determining whether Trump’s use of Constitutional powers was criminal or not — and that’s not a question for a prosecutor to answer. That is something left up to Congress.

It’s not that Trump can’t be investigated on these matters, but determining whether he’s illegally discharging his powers takes this out of the realm of a simple prosecutorial issue, and into a legal quagmire.

Mueller gets at this in his summary on page 8 of Volume II:

Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regard less of their source.

…[W]e concluded that in the rare case in which a criminal investigation of the President ‘s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply the obstruction laws to the President ‘s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

Mueller is running this investigation as an officer underneath the power of the executive branch that the president oversees. The Constitution doesn’t task special prosecutors with supervising the president’s use of power — it leaves that to Congress.

Mueller didn’t rule on it because it’s not his place to do so. The collusion investigation was slightly different in that there was specific crime alleged that didn’t involve the president’s powers, but rather, dealt with specific criminal statutes.

Obstruction consists of a question of how the president uses his Constitutional authorities — and that’s a matter for a different prosecutor.

We have a pretty good idea of what Democrats in Congress already think: they don’t want to impeach Trump on this issue because they believe it’s a losing cause. House Majority Leader Steny Hoyer (D) went further: “Based on what we have seen to date, going forward on impeachment is not worthwhile at this point.”

Democrats talk a big game on impeachment  — but there’s no intent behind their words, just bluffing.

So if Mueller doesn’t have an opinion because it’s not his place, and Democrats aren’t interested in impeaching, the obstruction theory is over — just like the collusion narrative, and the rest of the Mueller investigation.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.