In an impromptu press conference and on Twitter, President Donald Trump responded to special counsel Robert Mueller’s remarks about the Russia investigation with several false and questionable claims:
--Trump suggested that he could not be impeached because he hasn’t been charged with a crime. “I can’t imagine the courts allowing it,” he added. But constitutional scholars tell us a statutory crime is not a necessary predicate to impeachment, and impeachment is not reviewable by the courts.
--Trump claimed that he could not be charged with obstruction of justice because he was not guilty of an underlying crime. But Mueller, in his report, and again in his public statement, explained that it is possible to be guilty of obstruction even if one has been cleared of the underlying crime that gave rise to an investigation.
--Trump said that, unlike him, President Bill Clinton was found “guilty, guilty, guilty, guilty, guilty” by a “special prosecutor.” Kenneth Starr, the independent counsel who investigated Clinton, did tell Congress that there was evidence to impeach Clinton. But that was an authority given to independent counsels — not special counsels, such as Mueller.
--Trump repeated his claim that Mueller was “totally conflicted” — a charge that even one of Trump’s own advisers told him was “ridiculous.”
--Trump claimed, “Russia did not help me get elected.” The Mueller report, however, says the Russians carried out a social media campaign and targeted cyberattacks against Hillary Clinton and the Democratic party committees to damage Clinton and help Trump.
Mueller spoke publicly on May 29 for the first time about the special counsel’s investigation. The former FBI director reiterated the key findings of his report, which was issued on April 18, and elaborated a bit on why he did not make a determination on whether Trump had obstructed the federal investigation.
The Mueller report said investigators “found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” However, the report said it could not make a “traditional prosecutorial judgment,” because the department’s Office of Legal Counsel had issued an opinion that states an “indictment or criminal prosecution of a sitting President” would be unconstitutional.
“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct,” the report said. “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
In his May 29 remarks, Mueller reiterated that his report did not clear the president on the issue of obstruction. “[A]s set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said.
High Crimes and Misdemeanors
Trump was asked about the possibility of the Democratic-controlled House seeking to impeach him based on Mueller’s report, which detailed 11 “key events” of possible obstruction of justice. Trump suggested that he could not be impeached because he hasn’t been charged with a crime and the courts may not allow it.
Reporter, May 30: Do you think they’re going to impeach you? Do you think they’re –.
Trump: I don’t see how. They can, because they’re possibly allowed, although I can’t imagine the courts allowing it. I’ve never got into it. I never thought that would even be possible to be using that word. To me, it’s a dirty word, the word impeach. It’s a dirty, filthy, disgusting word and it had nothing to do with me.
So, I don’t think so, because there was no crime. You know it’s high crimes and, not with or or, it’s high crimes and misdemeanors. There was no high crime and there was no misdemeanor, so how do you impeach based on that?
Trump was referring to Article 2, Section 4 of the U.S. Constitution, which states in full: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Constitutional scholars told us that Trump is wrong to suggest that a statutory crime is required for the House to bring impeachment charges and it is very unlikely that the courts would get involved in impeachment proceedings.
“The President is wrong on both counts,” Neil Kinkopf, a professor of law at Georgia State University’s College of Law.
First it is worth nothing that Mueller said “charging the president with a crime was … not an option we could consider,” because of the OLC opinion — which states that an “indictment or criminal prosecution of a sitting President” would be unconstitutional.”
Regardless, Kinkopf and others we consulted with said that the framers of the Constitution meant impeachment to serve as a political remedy to remove federal officials from office for subverting the system of government — not necessarily for violating criminal statutes.
“The phrase ‘treason, bribery or other high crimes and misdemeanors’ does not refer to statutorily codified crimes,” Kinkopf said. “Rather, the catchall ‘other high crimes and misdemeanors’ is meant to be open-ended and to refer to all misconduct that is harmful to the nation in a manner similar to ‘treason and bribery’ even if it does not meet the technical requirements of the current version of the federal criminal code.”
Philip Bobbitt, a law professor at the University of Texas, referred us to Alexander Hamilton’s Federalist No. 65, which states that the subjects of impeachments “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” (The Federalists Papers were published in New York to urge the state to ratify the proposed Constitution.)
“The president seems to be confusing ‘High Crimes’ which are political offenses, see Federalist #65, with ordinary crimes and perhaps also confusing the term ‘misdemeanor’ with the common understanding of this as a minor offense,” Bobbitt said.
After President Richard Nixon resigned in the wake of Watergate, the Senate Judiciary Committee in 1974 published a report on the grounds for presidential impeachment that said the phrase “high Crimes and Misdemeanors … has a special historical meaning different from the ordinary meaning of the terms ‘crimes’ and ‘misdemeanors.'”
“‘High Misdemeanors’ referred to a category of offenses that subverted the system of government,” the committee report said. “Since the fourteenth century the phrase ‘high Crimes and Misdemeanors’ had been used in English impeachment cases to charge officials with a wide range of criminal and non-criminal offenses against the institutions and fundamental principles of English government.”
As for Trump’s claim that the courts would bar Congress from impeaching him, Princeton University political professor Keith E. Whittington called it “very unlikely.”
“The precise question of whether a court could review a congressional judgment that a particular offense is within the scope of the constitutional impeachment power has never been tested,” Whittington told us. “The U.S. Supreme Court has held that other aspects of the impeachment power are political questions entrusted to the sole discretion of Congress to resolve, and it seems very unlikely that the Court would intervene in the context of a presidential impeachment.”
Whittington referred us to an essay he wrote after Trump made a similar claim last month. In his essay, Whittington referred to a Supreme Court ruling involving the impeachment and conviction of Federal District Judge Walter Nixon. The U.S. Supreme Court rejected his appeal.
“The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers,” the court said in its opinion.
Obstruction Without Conspiracy?
Trump also claimed that he could not be guilty of obstruction of justice because he was not guilty of an underlying crime — specifically the special counsel’s office found that Trump did not conspire with Russian efforts to influence the 2016 election.
But Mueller, in his report, and again in his public statement on May 29, explained that it is possible to be guilty of obstruction even if one has been cleared of the underlying crime that gave rise to an investigation.
According to Trump, Mueller “said, essentially, ‘You’re innocent.’ I’m innocent of all charges. And, you know, the thing that nobody brings up: There was no crime. They’re saying ‘he’s obstructing something’ and there was no crime. And nobody brings it up.”
Trump made similararguments shortly before his press conference, when he tweeted: “It was a crime that didn’t exist. So now the Dems and their partner, the Fake News Media …. say he fought back against this phony crime that didn’t exist, this horrendous false accusation, and he shouldn’t fight back, he should just sit back and take it. Could this be Obstruction? No, Mueller didn’t find Obstruction either.”
In his comments, Mueller said his investigation concluded there was “insufficient evidence to charge a broader conspiracy” between the Russians who sought to influence the election and the Trump campaign. But he did not clear Trump on obstruction of justice.
“If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said in his remarks. “We did not, however, make a determination as to whether the president did commit a crime.”
Mueller also explained the importance of an obstruction investigation.
“The matters we investigated were of paramount importance,” he said. “It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.”
In the written special counsel report, Mueller explained that proof of an underlying crime is “not an element of an obstruction offense.”
Mueller cited the case United States vs. Greer, in which a federal circuit judge concluded, “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime.”
So why would someone obstruct an investigation if they had done nothing illegal? And if they did, why would investigators care?
“Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment,” the Mueller report states. “The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.”
“In this investigation,” the report states, “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians — could be seen as criminal activity by the President, his campaign, or his family.”
Although Attorney General William Barr concluded after reading Mueller’s report that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,” it is something that Congress could consider in impeachment hearings. In his remarks May 29, Mueller said that one reason for laying out the evidence for obstruction is that the Constitution provides “a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Bill Clinton Found ‘Guilty’?
At one point, Trump made an apples-to-oranges comparison of his situation to that of former President Bill Clinton.
Trump, May 30: There were no charges. None. If you look at — if you look at Bill Clinton, that very nice gentleman who’s been so much on my side, as you know, his special prosecutor — it was guilty, guilty, guilty, guilty, guilty. So many guiltys. With me, there was no guilty.
Trump is referring to independent counsel Kenneth Starr, who led a four-year investigation of Clinton, including the president’s sexual affair with White House intern Monica Lewinsky. Starr did not issue a criminal indictment of Clinton; in the report on his investigation, Starr said there was “substantial and credible information supporting … eleven possible grounds for impeachment” by Congress, including several examples of perjury and obstruction of justice.
Clinton was impeached by the House of Representatives, but he was acquitted by the Senate — meaning he was ultimately not found “guilty.”
The impeachment recommendation to Congress, however, was an authority specifically granted to independent counsels, such as Starr, under the Ethics in Government Act of 1978. The independent counsel statute of that law expired in June 1999.
Mueller was appointed as “special counsel” in 2017. In that role, he did not have the same authority, Kimberly Wehle, a University of Baltimore law professor, told us in an email.
“Starr was under a separate statute, which expired,” she said. “Mueller was under an internal DOJ regulation. Totally different legal regimes. Starr was required to report to Congress. Mueller was required to report to Barr.”
Kinkopf told us the “regs setting up the position of Special Counsel and defining the report that the Special Counsel would produce were specifically in response to the perceived abuses of the Starr Report — particularly its partisan tone and gratuitous forays into salacious detail.”
The Justice Department regulation covering special counsels says they have “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.”
But, on the matter of obstruction, Mueller said in his report that he decided not to make “a traditional prosecutorial judgment” about Trump, in part, because of a DOJ legal opinion that says “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”
Still, in considering whether the president may have committed obstruction of justice, Mueller himself examined 11 “key events,” which we have written about before.
“Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations,” Mueller wrote. “The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”
In his public remarks on May 29, Mueller said that one reason for laying out the evidence for obstruction is that the Constitution provides “a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
That “tiptoes pretty close to an impeachment referral and is at the very least an invitation to further Congressional investigation,” Bobbitt told us. “I think that is as far as the Special Counsel felt he could go; he certainly was not authorized by the governing regs to recommend an impeachment.”
Mueller’s Alleged Conflicts
Trump also repeated some false and misleading claims about Mueller and the investigation, including his insistence that the special counsel was “totally conflicted” — a charge that even one of Trump’s own advisers warned him was “ridiculous.”
Trump has long claimed that Mueller should not have been appointed special counsel due to alleged conflicts of interest — claims we most recently dealt with in our April 19 story, “Debunking Mueller’s ‘Conflicts.’” Trump’s claim hinges on two main allegations: that Mueller wanted the job of FBI director but the president turned him down; and that Mueller had a “business dispute” over membership fees when Mueller left a country club owned by Trump. The special counsel report, however, undermines both of those claims.
Here’s how the president put it on May 30:
Trump, May 30: I think he’s totally conflicted. Because, as you know, he wanted to be the FBI Director, and I said no. As you know, I had a business dispute with him. After he left the FBI, we had a business dispute. Not a nice one. He wasn’t happy with what I did, and I don’t blame him. But I had to do it because that was the right thing to do. But I had a business dispute.
And he loves Comey. You look at the relationship with those two. So whether it’s love or deep like, but he was conflicted.
Look, Robert Mueller should’ve never been chosen because he wanted the FBI job and he didn’t get it. And the next day, he was picked as Special Counsel. So you tell somebody, “I’m sorry, you can’t have the job.” And then, after you say that, he’s going to make a ruling on you? It doesn’t work that way. Plus, we had a business dispute. Plus, his relationship with Comey was extraordinary.
Hours after his press conference, Trump also tweeted that Mueller “came to the Oval Office (along with other potential candidates) seeking to be named the Director of the FBI … I told him NO. The next day he was named Special Counsel — A total Conflict of Interest NICE!”
That doesn’t jibe with the testimony of former White House Chief Strategist Steve Bannon who told investigators that it was the White House that invited Mueller to the Oval Office to “offer a perspective on the institution of the FBI.” According to the special counsel report, “Bannon said that, although the White House thought about beseeching Mueller to become Director again, he did not come in looking for the job.”
As for the alleged dispute over membership fees at the Trump National Golf Club in Sterling, Virginia, the special counsel report also addresses that. According to the report, Mueller informed the club in a letter on Oct. 12, 2011, that he would no longer be a member. The letter “noted that ‘we live in the District and find that we are unable to make full use of the Club’ and that inquired ‘whether we would be entitled to a refund of a portion of our initial membership fee,’ which was paid in 1994,” the report said.
“About two weeks later, the controller of the club responded that the Muellers’ resignation would be effective October 31, 2011, and that they would be ‘placed on a waitlist to be refunded on a first resigned/first refunded basis’ in accordance with the club’s legal documents,” the report said. “The Muellers have not had further contact with the club.”
In July 2017, a spokesman for the special counsel said, “Mr. Mueller left the club in October 2011 without dispute.”
As for Trump’s claim that Mueller was conflicted because he has an “extraordinary” relationship with fired FBI Director James Comey — “He loves Comey,” Trump said — we note that Comey testified before a congressional committee in December that while he admires Mueller, “We’re not friends in any social sense.” Added Comey, “I don’t know his phone number, I’ve never been to his house, I don’t know his children’s names.”
The special counsel report notes that when Trump initially laid out his claims about Mueller’s alleged conflicts, several advisers recommended the president drop it.
According to the report, the president’s advisers — including then-White House Chief of Staff Reince Priebus, then-White House counsel Don McGahn and Bannon — “pushed back on his assertion of conflicts, telling the President they did not count as true conflicts.” Bannon told investigators that he “recalled telling the President that the purported conflicts were ‘ridiculous’ and that none of them was real or could come close to justifying precluding Mueller from serving as Special Counsel.”
Russian Interference Helped Trump
Shortly before his press conference, Trump tweeted, “I had nothing to do with Russia helping me to get elected.” It seemed to be the first time he acknowledged that Russian interference helped him in 2016. But when asked about his tweet, Trump took it back.
Reporter, May 30: Do you believe that Russia helped you get elected?
Trump: No, Russia did not help me get elected. You know who got me elected? You know who got me elected? I got me elected. Russia didn’t help me at all. Russia, if anything, I think, helped the other side.
In fact, Russia did help Trump’s campaign. Putin denied that Russia interfered in the election, but admitted that he wanted Trump to win.
The Mueller report details how the Russians “carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” and “conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents” to damage her presidential campaign.
In his remarks, Mueller said the public release of the stolen documents “were designed and timed to interfere with our election and to damage a presidential candidate,” referring to Clinton.
Mueller’s report also lays out how eager the Trump campaign was to use the stolen material to its political advantage, even after the Department of Homeland Security and the Office of the Director of National Intelligence issued a joint public statement on Oct. 7, 2016, that the Russian Government was behind the hacking.
Although investigators “did not establish” the Trump campaign “conspired or coordinated” with Russia’s “election interference activities,” Mueller’s report said “the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts.” (See our story “Kushner Distorts Scope of Russia Interference” for more about Russian’s efforts to help Trump.)