A successful FOIA request has been released, for the internal DoJ opinion on the potential Trump obstructions of justice, laid out in the Mueller report. The opinion, as we know and as announced by Bill Barr, was that the obstruction standard was not met for any of Trump's actions. But now we have the legal basis put forward in that opinion.

To summarize, the DoJ found that since Trump did not commit a crime in discourse with the Russians about the 2016 elections, he therefore could not commit a crime in obstructing the investigation of said discourse.

Further they found that all of Trump's actions could have innocuous causes, and could not be solely ascribed to corrupt intent or interference with the investigation. Thus his actions failed to meet two key standards for obstruction.

For Trump's firing of Comey, the innocuous reason was that Comey had refused to make a public statement that Trump was not under investigation. Trump's request for loyalty from Comey was ignored, as were his hopes that Comey would let the investigation go, and thus obstruction was not possible.

For Trump's inquiries into replacing Mueller, the innocuous reason was that Trump believed the investigation was politically motivated and impeded his ability to govern. Also none of his requests were carried out, but he did not punish his staff, which indicates that his intent was not to obstruct.

For Trump's attempts to influence witnesses, the innocuous reason is that he wanted them to rebut media stories that he believed were false, in their public statements and testimony. Further Trump's definition of "flip", which he urged them not to do, was to give false testimony, in return for a lesser sentence. Thus he counseled the witnesses not to perjure themselves.

This is truly some pretzel logic. I'll bet there are some mob bosses sitting in prison, saying "wtf". I don't know if the obstruction charges would have been successful, and it's a moot point for a sitting president. But hard to believe that his intent was not to obstruct.

Here is a copy of the letter:

https://s3.documentcloud.org/documents/ ... 4_memo.pdf

So basically the president was above the law for obstruction even if he did collude with Russia while he was a candidate.

It's clear that this pattern of behavior, having people loyal to him adjust the narrative of events in his favor, would play out again in the 2020 election.

In 2017, Comey wouldn't go along, and was fired. In 2018, Sessions wouldn't go along, and resigned.

In 2019, Barr went along, but in 2020, he wouldn't go along and resigned. Pence wouldn't go along and acknowledged his defeat.

I wonder if any of those people would acknowledge the Frankenstein they helped to create, and how it would manifest in the 2020 election. Probably not. It only emboldened Trump to go farther.

So it's legal to obstruct justice proceedings if you're found innocent by these very proceedings... which have been obstructed?

Now that's a legal hot take right there.

Then again, logical fallacies were probably one of the most defining aspects of that presidency.

[quote="Avatar2go"]
Thanks Avatar...it's a good read but it doesn't cut & paste very well.

From section II B Precedent:

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 pursue under remotely similar circumstances, and we have not identified any either.

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 to coordinated with representatives of the Russian government to interfere in the 2016 election.

The way I read it is that because there is no underlying crime, Russian collusion in this case, there can't be any obstruction.


From section II D Other Considerations:

The Special Council's thorough investigation did not establish that the President committed any underlying crime related to Russian interference.

...the absence of underlying guilt is relevant and powerful evidence in assessing whether otherwise innocent actions were undertaken with a corrupt motive. In the absence of an underlying offense, the most compelling inference in evaluating the President's conduct is that he reasonably believed that the Special Counsel's investigation was interfering with his governing agenda.

I read this as without committing a crime you could not and would not develop a plan to obstruct an investigation into what, a non-crime? Trump knew he was innocent: why would he break the law by trying to cover something up he didn't do?

I just checked the date on this thing, March 24, 2019. Why is it just now being released?

Thanks,
Cary

Caryjack wrote:

The way I read it is that because there is no underlying crime, Russian collusion in this case, there can't be any obstruction.

I read this as without committing a crime you could not and would not develop a plan to obstruct an investigation into what, a non-crime? Trump knew he was innocent: why would he break the law by trying to cover something up he didn't do?

I just checked the date on this thing, March 24, 2019. Why is it just now being released?

Yes, under ordinary circumstances, a prosecution would not occur for obstruction, if there was no established original crime to obstruct. That was one of the two criteria they listed, that was not met.

I think that is also partly why Mueller left it to DoJ to decide how to proceed. He said there was evidence of obstruction, but did not recommend those charges. Mueller's take on it was more establishing the factual record on what actually occurred. Much as the Jan 6 committee is doing for that event.

It seems abundantly clear that Trump attempted to interfere, to govern, and to influence the investigation by Mueller into his own activities. But it wouldn't be prosecutable under the ordinary twin standards, of underlying crime, and sole criminal intent.

As to why it wasn't released earlier, the DoJ objected, saying that it was internal work product for deliberation, and also that Barr had already decided to not pursue obstruction, before the letter was received. Thus the letter was only used for confirmation of an earlier decision.

After an extended battle in court over the FOIA request, the document was finally released last week.

In another thread, it was pointed out Republicans want to appear hard on crime. But, look how many are crying foul when their own leader is alleged to commit crimes.