Did Trump’s Attempts to Obstruct Actually Work?
Depending on which competing reality you have been frequenting, two narratives have dominated discussions of President Donald Trump’s attempted obstruction of justice. The first (let’s call it the Barr/Fox version) argues that since there was no underlying crime, there was really nothing to obstruct and, plus, he was sincerely angry. The second version (let’s call it the too-incompetent to obstruct version) accepts his malign and impeachable intentions, but focuses on the refusal by his aides and assorted cronies to carry out his obstructive suggestions. In this reality, Trump was largely thwarted by Don McGahn’s integrity and Corey Lewandowski’s general incompetence and cowardice.
But now comes Benjamin Wittes, the editor-in-chief of Lawfare, who has been subjecting the Mueller report to a deep dive read (if you are not following his “reading diary,” you really need to start). Wittes offers evidence of a third possible version: Mueller’s report suggests strongly that Trump did, in fact, successfully obstruct the investigation by dangling pardons to potential witness, most notably former campaign chairman Paul Manafort
Focusing on the section involving Trump’s handling of former National Security Adviser Michael Flynn and Manafort, Wittes says that Mueller describes “a very ugly and dangerous pattern” in Trump’s behavior.
Even after it had become clear that Flynn was under investigation and had lied to the FBI, Wittes notes that Mueller documents how Trump spoke warmly about him in public and had intermediaries “pass messages to Flynn conveying that the President still cared about him and encouraging him to stay strong.”
But the pattern with Manafort was even clearer and apparently more successful. At one point, Manafort confided to Rick Gates that word had been passed to him that the president was “going to take care of us.” Even as Manafort faced trials, Wittes writes, “Trump publicly flirted with the idea of a pardon and blasted the prosecution. He praised Manafort’s bravery and refusal to flip. And he commented on the trial during the jury’s deliberations.”
Mueller’s report lingers on Trump’s behavior, noting that “there is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government.”
Wittes notes that Mueller’s conclusion about Trump’s intentions was quite blunt: The evidence “indicates that the President intended to encourage Manafort to not cooperate with the government.” Moreover, Mueller concluded, the record “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.” Mueller also found that the evidence “supports a conclusion that the President intended, at least in part, to influence the jury.”
In his extended blog post on the report, Wittes notes that Trump’s strategy may, in fact have worked. Notably, writes Wittes, “Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction.” Manafort ultimately breached his plea deal after prosecutors concluded that he had failed to cooperate and was lying to them.
“So the reality here may well be that the president’s obstructive conduct actually did, in fact, obstruct the investigation.,” writes Wittes. “The president hinted that Manafort should not ‘flip’ and that he would take care of him. And Manafort acted in a fashion consistent with his relying on those assurances. None of this is authorized in any sense by Article II of the Constitution.”
While the president’s power to pardon is sweeping, Wittes argues that there is no plausible Article II-based defense of Trump’s actions. The allegation in the Mueller report was “not that a facially valid exercise of Article II power was corrupt or ill-motivated. The argument is that a series of communications, public and private, were corrupt efforts to influence a witness and a jury. Those figures are not part of the executive branch.”
Wittes notes that if Trump had offered Manafort a pardon in return for cash, “there would be no question he had committed bribery. The allegation here is very similar; it is the suggestion that he publicly hinted that he would grant a pardon in exchange for something he wanted, to wit, Manafort’s silence.”
The misuse of the dangled pardons and the possibility that they successfully tampered with a witness poses a stark challenge to Congress. Wrote Wittes:
It is also a grotesque abuse of power for impeachment purposes. The spectacle of the President of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they do not is one of the most singular abuses of the entire Trump presidency. Again, one has to ask of Congress what is unacceptable in a president’s interaction with an investigation if this conduct is not impeachable?
At this point, we don’t know how significant Manafort’s silence was to the outcome of the investigation. We do know that before, during, and after his tenure as Trump campaign chair, he maintained deep and tangled relationships with figures associated with the Kremlin. At one point he passed private campaign polling data to an associate with links to Russian intelligence. Could he have exposed greater cooperation between TrumpWorld and the Russians? We don’t know, although Mueller left behind several tantalizing suggestions about the information that they had been blocked from seeing.
On page 9 of the report’s first volume, Mueller notes that “several individuals affiliated with the Trump campaign lied to this Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”
On the very next page, the Mueller team again emphasized that the investigation “not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation.” As a result, Mueller left behind this important caveat: “Accordingly, 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 this report.”
But, for the time being, it appears that Donald Trump’s attempts to obstruct key parts of the investigation may actually have succeeded.