Special Counsel Robert Mueller’s report into possible Russian interference in the 2016 U.S. presidential election has dominated Washington conversations since Mueller submitted his report to Attorney General William Barr in March 2019. Barr released his own summary of Muller’s report, which according to some members of the Mueller team, “failed to adequately portray the findings” of their inquiry. They suggested that the findings by the Special Counsel are far more troubling for President Trump than what Barr assessed in his four-page summary.
Members of the Special Counsel’s team had provided summaries of their own as part of the overall report that was delivered to Barr, but Barr hardly cited their material in his letter to Congress (Fandos, Schmidt S, & Mazzetti, 2019). The Mueller team voiced their concerns that the Attorney General may be trying to shape the narrative of the results of the investigation in Trump’s favor, and that such attempts represent a gross politicization of the nation’s top law enforcement body.
Most Americans feel they deserve to know the full report of the investigation into possible foreign interference in our elections, as well as possible obstruction of justice by the President of the United States. A four-page summary by Attorney General Barr — a political appointee of the individual under investigation — is considered neither sufficient, nor appropriate.
Eventually, Attorney General Barr released the full report on April 18, 2019. The findings by the Special Counsel are very troubling. The New York Times characterized the report as portraying “a White House and its culture of dishonesty.” This White House is led by a president who constantly lies and instructs his aides to lie to the public. The President has also threatened to fire staffers who refused to carry out his illegal orders. At the same time, however, it was his staffers who at various junctures managed to stop the President from following his own instincts, which saved him from potentially deeper legal troubles.
It is already a widely held opinion that the report portrays a man who disrespected the Constitution to save himself, and in the process degraded the office of the President of the United States.
Surprisingly however, we’ve been here before. An eerily similar set of circumstances happened 45 years ago during the presidency of Richard Nixon.
History Repeating Itself?
The Trump administration and its scandals have been compared to the Nixon administration’s misfortunes during Nixon’s second term in office.
Two famed Washington Post journalists, Bob Woodward and Carl Bernstein, wrote an article in February 2018 that started with the words “we’re here again.” Last year, I spent half my summer break reading the classic “All the President’s Men,” by Woodward and Bernstein. I feel that we are witnessing a new version of the Watergate scandal. John Oliver, host of “Last Week Tonight,” referred to the Trump scandal we’re witnessing today as “Stupid Watergate.” Oliver’s rationale is the fact that while the Special Counsel’s investigation may have consequences similar to those that stemmed from the Watergate scandal, the individuals involved in the current Trump scandal are, in Oliver’s words, “really stupid.” Still, ”we’re here again” is a fitting description of the current situation in Washington.
Let’s take a brief look back into the Watergate scandal. The scandal stemmed from a break-in that occurred in the Democratic National Committee on June 17, 1972, perpetrated by members of President Nixon’s re-election committee, aptly named “CREEP” (Committee to Re-Elect the President). The scandal does not refer to the actual-break in, but rather Nixon’s attempts to cover it up. Nixon’s re-election campaign had been conducting illegal wiretaps, allegedly stealing documents, and was also suspected of destroying Edmund Muskie’s candidacy by allegedly forging a letter (Muskie was the Democratic frontrunner before George McGovern). It was all a part of the Nixon re-election campaign’s dirty tricks to get Nixon re-elected. It would make sense why Nixon would go to extreme lengths to cover up those actions.
Nixon’s downfall was that he kept tapes in the Oval Office. They were incriminating tapes in which Nixon was caught discussing obstruction of justice efforts and other dirty tricks. The Department of Justice appointed a special prosecutor, Archibald Cox, to evaluate those tapes, and Nixon attempted to fire Cox numerous times. In October 1973, he instructed his appointed Attorney General, Elliot Richardson, to fire Cox. The similarities in the appointment of current Attorney General William Barr and Elliot Richardson are also notable. Both Nixon and Trump wanted an Attorney General who would serve as their protector during an influential investigation. Richardson, however, refused to fire Cox, as did his deputy William Ruckelshaus. Nixon fired both Richardson and Ruckelshaus because of their insistence on not interfering with the special prosecutor’s investigation. This became known as the “Saturday Night Massacre.”
Nixon’s attempts failed, however, as he continue to make his own situation worse. Leon Jaworski was appointed as the special counsel, and Jaworski eventually managed to subpoena Nixon’s “smoking gun tape,” which finally led to Nixon’s resignation on August 8, 1974. In that tape, Nixon accepted Bob Haldeman’s suggestion that the administration approach CIA Director Richard Helms and his deputy Vernon Walters, requesting that the FBI not investigate the Watergate break-in on grounds of national security. This constituted a blatant obstruction of justice and abuse of presidential power.
It is too early to say whether or not the Mueller report will lead to a Trump resignation or impeachment. Democratic leaders are far too divided on the issue of impeachment, although that is beginning to change (as more of the American public calls for impeachment). Republicans are sticking by President Trump right now, a far contrast to Republican reaction after the Nixon “smoking gun tape” was released. In Nixon’s case, Senator Barry Goldwater personally visited Nixon in the White House and declared that Nixon had lost the support of the Republican Party. Right now, it is hard to imagine Senator McConnell or any other GOP politicians coming to the White House and declaring to President Trump that the GOP would no longer support him.
In looking at parallels between Donald Trump and Richard Nixon, we’ll look here only at the issue of obstruction of justice. The issue of Russian interference is already an established and well-known fact since the 2016 elections, and Mueller confirmed it yet again by writing that the Russian government “interfered in the 2016 Presidential Election in sweeping and systematic fashion,” and that they “violated US criminal law.”
Obstruction of justice is a felony punishable by law. The President of the United States should have upholded the rule of law, but in Trump’s case, he may have potentially broke the very laws he swore in his oath of office to protect.
Obstruction of justice was the final piece of Nixon’s downfall — but will it also be Trump’s?
The Case for Obstruction of Justice
Mueller finds several instances of potential obstruction of justice by the President. Mueller did not say conclusively whether or not the President obstructed justice, but he made it clear that it is up to Congress to judge based on the evidence presented in his report. He also presented the public an opportunity to judge whether or not the President obstructed justice
Pursuant to 18 U.S.C § 1503, for someone to be charged with obstruction of justice, prosecutors must provide the following evidence:
- There is an ongoing federal investigation.
- The defendant knew of the federal proceedings.
- The defendant had corrupt intent to interfere with the proceeding.
The following are some of the events the Mueller team cited in their report as instances of the President trying to obstruct justice. Deducing the intentions of an individual is really difficult, and in most of these instances, Mueller’s team had difficulty determining Trump’s intent.
a. Trump’s request to Director Comey that he drop the Flynn investigation (January 2017).
Trump personally pleaded to then-FBI Director, James Comey, to drop the FBI’s investigation into Michael Flynn. Trump said “I hope you can see your way clear to letting this go, to letting Flynn go …. I hope you can let this go”. The special counsel believes that “substantial evidence” corroborates both the account made by Director Comey to the Special Counsel’s office and Comey’s public testimony in June 2017. Mueller’s team wrote that Trump’s request may have the “tendency to impede the administration of justice by shutting down an inquiry.” If we base this on the definition of “obstruction of justice” by the USC, 18 U.S.C § 1501-1521, which is “interference with the orderly administration of law and justice,” Trump did try to obstruct justice, or at least had the intent of obstructing justice.
However, the Mueller team wrote that because they could not find any gain or loss to the President from the Flynn investigation continuing, they could not determine sufficient evidence establishing Trump’s intent to obstruct.
b. Trump’s firing of James Comey (May 2017)
Director Comey was fired in May 2017 by the President. Initially, the President justified the firing because of what he said were recommendations from various DOJ officials who were displeased with the way Comey handled Hillary Clinton’s email investigations. Later on, however, Trump admitted that he fired Comey because of the Russia probe. Mueller believed the catalyst for the President to fire Comey was Comey’s reluctance to announce that the President was not under investigation.
Again, it was difficult for Mueller to recommend that the grand jury indict the President on obstruction charges, as Mueller could not sufficiently establish whether Trump’s intent was “corrupt.” Mueller wrote that “the initial reliance on a pretextual justification could support an inference that the president had concerns about providing the real reason for the firing, although the evidence does not resolve whether those concerns were personal, political or both.”
c. Trump’s instructions to Corey Lewandowski to order then-Attorney General Sessions to curtail the investigation
Trump ordered his former campaign manager, Corey Lewandowski, to deliver a letter to Attorney General Sessions, instructing Sessions to announce publicly that the President was being treated unfairly because of the appointment of Mueller, and that Mueller’s mandate was simply to investigate how future elections are to be protected from foreign interference.
Here, Mueller’s team believed that the President’s directives specifically told Sessions to end the investigation surrounding the President and his campaign. Mueller believed there is substantial evidence to prove that Trump intended “to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” This instruction to Corey Lewandowski is enough for federal prosecutors to recommend obstruction of justice charges of the President of the United States, noting the sufficient plausible evidence.
d. Trump’s efforts to fire Robert Mueller
The President has attempted or threatened to fire the Special Counsel numerous times since Mueller’s appointment. Republicans in the Senate and the House had warned the President of the perils of firing the Special Counsel, and the President had been adhering to that warning. The New York times published a report in June 2018 that in June 2017, the President ordered White House counsel Don McGahn to call the Department of Justice and fire the Special Counsel.
Trump’s justification for his attempt to fire Mueller is a fairly preposterous one. Trump argued that Mueller could not be impartial because Mueller had a dispute over golf fees at one of Trump’s golf courses in Virginia, and that Mueller resigned his membership from that golf course. That’s right. The President of the United States argued that because of a dispute over golf fees, he had the right to fire a Special Counsel who was investigating him. Two other reasons Trump gave are that Mueller had worked for a law firm that represented Jared Kushner, and that Mueller was invited for an interview to replace Comey as the FBI Director a day before he was appointed as Special Counsel.
In the end, McGahn refused to carry out this order by the President, and McGahn prepared to resign in protest. Had Trump insisted, and directly ordered the Deputy Attorney General Rod Rosenstein to fire Mueller, it would have been a true repeat of Nixon’s Saturday Night Massacre in 1973.
The President was reportedly terrified by the implications of the Mueller appointment. Mueller noted that when Jeff Sessions broke the news to the President that a Special Counsel had been appointed, the President “slumped back in his chair” and said “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”
The repeated efforts by the President to fire the special counsel is the clearest sign of obstruction of justice in this case. Mueller noted that had the President moved forward and fired him, this act may have had “the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.”
Mueller established that there is “substantial evidence” indicating that Trump’s attempts to remove him “were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct – and most immediately, to the reports that the President was being investigated for potential obstruction of justice.”
e. Trump’s efforts to encourage Paul Manafort to not cooperate with the Special Counsel’s office
Paul Manafort, Trump’s campaign manager was indicted by the Special Counsel’s office in October 2017. He was charged with engaging in a conspiracy against the United States, conspiracy to launder money, and failing to register as a foreign agent. The President, upon hearing this had floated the suggestion that he could pardon Manafort. He also praised Manafort for not “flipping,” a term used by mob bosses to describe members who cooperated with the authorities.
Mueller’s team wrote that the President’s public statements during the entire Manafort trials could potentially inflame the jurors. His team also wrote that “there is evidence that the president’s actions had the potential to influence Manafort’s decision whether to cooperate with the government,” and that his statements “suggested that a pardon was a more likely possibility if Manafort continued not to cooperate.” Mueller believed that the president “intended to encourage Manafort to not cooperate with the government,” which qualifies as corrupt intent.
The case surrounding the President is a complex one. Obstruction of justice is difficult to prove. Intent is very hard to decipher and requires a through investigation of events. Gathering evidence on what’s going on in the minds of the individuals that are on the verge of committing obstruction of justice is a complex task. Attorney General Barr argued that the President did not obstruct justice, because he did not have “corrupt intent.” Prosecutors must establish an individual’s motives beyond a reasonable doubt. Establishing that the individual conspiring to commit obstruction was aware of the repercussions is simply not enough. There must be specific intent in the individual’s mind in order to create obstruction.
In Nixon’s case, he was explicit in agreeing with Bob Haldeman’s suggestion to use the CIA to relay a message to the FBI to stop further probes into the Watergate break-in. That Nixon was caught on tape agreeing to this invoked the necessary statute for establishing “corrupt intent” motives in obstructing justice. Trump did the same when he encouraged Director Comey not to investigate Michael Flynn. Both Nixon and Trump not only obstructed justice, but also abused the powers of the Presidency. Nixon’s case, however, included clear corrupt intent. Mueller’s assessment regarding Trump’s request of Comey, however, did not reach a conclusion as to whether or not Trump had corrupt intent.
Nixon’s appointment of Elliot Richardson mirrors Trump’s appointment of William Barr. Nixon wanted Richardson to protect him during the Watergate probe, but in the end Richardson chose to uphold the rule of law rather than cover up a president who he knew was breaking the law. Barr, however, was different. His attempts to create a dubious summary of the Mueller report had obvious political motives in protecting the president who had appointed him.
Both Trump and Nixon also had aides who offered damaging testimony. For Nixon, it was the testimony of White House counsel John Dean, Alexander Butterfield (who revealed the existence of Nixon’s tapes), and Chief of Staff Bob Haldemann. The testimony provided by Jeff Sessions, James Comey and Michael Cohen was destructive enough for Trump during his presidency.
Both Nixon and Trump also denied knowledge of potential crimes stemming from their respective probes. Both denied obstructing justice, both distanced themselves from associates and aides under scrutiny, and both referred to the investigations into their actions as witch hunts (more or less). Both also lamented the intense press coverage of their scandals.
The similarities between Trump and Nixon’s reaction to their scandals are eerily similar. We are now witnessing a president who probably sensed the challenges ahead in leading the country because of the ferocity of the scandal he was involved in.
Does the Mueller report offer a smoking gun then?
In his report, Special Counsel Mueller left a trail of instances of potential obstruction of justice involving the President of the United States. Mueller made it clear that it is now up to Congress to decide.
The public (which is us) also has the opportunity to judge whether or not the President obstructed justice. In my view, the evidence compiled by Mueller is more than sufficient to determine that the President of the United States obstructed justice. Of the 11 instances laid down in the Mueller report, I believe two provide clear evidence of obstruction. Trump’s attempts to fire Mueller, and Trump’s efforts to curtail the investigation, are clear evidence.
However, while it is plenty damaging, this is not yet a smoking gun for the administration. But there are two things to keep in mind:
1. The Mueller report still contains redactions — redactions that are possibly even more harmful for the President. Until we have the unredacted version of the report, we cannot know the full scale of Trump’s obstruction of justice efforts.
2. Special Counsel Mueller has referred a number of investigations to federal prosecutors in New York, Virginia and Washington, D.C., and those investigations continue.
It is now up to the United States Congress to decide next steps after the Mueller report. Just as with Watergate, the President may have to fight subpoenas and further testimony from his aides. This time, the President is not fighting over tapes, as Nixon did, but to keep his financial records from being made public.
Public opinion is building for Congress to react appropriately to the revelations from the Mueller report. Republicans must do the right thing in putting the country above the President and the party. After all, the oath of loyalty that GOP lawmakers have taken is not to the President — but to their country, and to the citizens they represent.
Fandos, N., Schmidt S, M., & Mazzetti, M. (2019, 4 3). Some on Mueller’s Team Say Report Was More Damaging Than Barr Revealed. Retrieved from The New York Times: https://www.nytimes.com/2019/04/03/us/politics/william-barr-mueller-report.html