Opinion | White House

The lesson of Mueller: An innocent man's defense can look like a guilty man's obstruction

The views expressed by contributors are their own and not the view of The Hill

Thousands of interviews and hundreds of subpoenas later, special counsel Robert Mueller broke his two-year Wizard of Oz-like silence on Thursday in the form of a 448-page report that formally dropped the curtain on the bad political musical we've come to know as the Russian collusion scandal.

Let the record reflect that Mueller wasted little time debunking the feigned electoral love affair between Vladimir Putin and Donald Trump that so many Democrats and their allies in the news media sang to life.

With little equivocation, the prosecutor declared that Russia did interfere in the 2016 election, including by hacking presidential nominee Hillary Clinton and Democratic National Committee documents, but there was no evidence, none, that the president or his campaign - or any American, for that matter - engaged in the conspiracy. 

To The New York Times, The Washington Post, CNN, MSNBC and other media outlets that fanned the Russia collusion narrative - and to congressional Democrats such as Rep. Adam Schiff (D-Calif.) who insisted there was secret evidence to support it - I refer you to this declaration in Mueller's report: 

"In sum, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russia government. Those links included Russian offers of assistance to the Campaign. In some instances the Campaign was receptive to the offers, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities."

One inherent message of the first volume of the Mueller report is clear: It is time for the professional media to assume responsibility for its role in inflaming the public with a scandal that wasn't proven, by endlessly quoting intelligence and partisan political sources whose claims went far beyond the evidence it slithered upon.

Case closed. Russiagate was no Watergate.

The second volume of the Mueller report - dealing with 10 separate actions by Trump that could be construed as obstruction of justice - is less decisive.

It is clear from the report that an impetuous president with a famously quick temper pondered aloud about firing people such as Mueller, suggested that witnesses stick to their stories and sought leniency for some of his entangled aides. Senior advisers took extreme actions to ensure the president didn't act on those impulses.

If he were a mob boss seeking to protect his racketeering empire, these actions would be slam-dunk evidence of obstruction.

But, as Volume 1 of the Mueller report made clear, Trump committed no crime that he was trying to cover up. 

That makes a motive for some of his ill-advised temper tantrums unclear and, from a prosecutorial perspective, makes his state of mind conflicted.

Because Trump refused an interview with Mueller, on the advice of his attorneys, the only state-of-mind evidence that prosecutors had directly from him came from the president's interview with NBC News's Lester Holt, just a few days after the president fired then-FBI Director James Comey.

In that interview, Trump made clear that he did not want to stop the Russia investigation and actually expected his actions would elongate it. 

His motive, he said, was simply to get a more competent person in charge so that the probe would be "absolutely done properly" and the outcome would be the "right thing for the American people."

That's hardly the intentions of an obstructive criminal kingpin.

Most importantly, Trump did not ultimately take most of the formal actions he threatened - which he had the power to do under Article II of the Constitution - and thus did not actually thwart, end or impede the Mueller probe. 

For the purpose of a court of law, Trump neither committed a Russia collusion crime that he needed to cover up nor took formal action that actually impeded the probe.

And that left only a theoretical case for attempted obstruction. The report shows Mueller's team so struggled with the issue that it offered novel theories of prosecution, and then abdicated the responsibility it was given to make the traditional charging decision.

"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," Team Mueller wrote. "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 state so.

"Based on the facts and the applicable legal standard, 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."

Attorney General William Barr and Deputy Attorney General Rod Rosenstein, who supervised the Russia probe for most of its existence, ultimately decided that charges were not supported by the evidence. 

Their reasoning was clear: It could not be determined whether Trump's outbursts were an attempt at obstruction or simply the actions of a man bewildered by false and politically driven accusations, which he saw as unfairly threatening the success of his presidency. 

"There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents and fueled by illegal leaks," Barr explained. "Nonetheless, the White House fully cooperated."

Later, Barr added: "Apart from whether the acts were obstructive, this evidence of noncorrupt motives weighs heavily against any allegation that the president had a corrupt intent to obstruct the investigation."

For most everyday Americans - except those Democrats and media members who remain intent on doubling down on their false narrative - the Mueller report will end the Russia collusion debate, once and for all.

On the question of obstruction, there is a less satisfying conclusion but still some important lessons, starting with Trump.

As commander in chief, his words matter and can be construed as orders, good or bad. Temper tantrums might be fine in the confines of a CEO's office or a board room. But on the national and global stages, where the U.S. president is the world's most powerful figure, they are inappropriate coming from the Oval Office.

Mueller's report won't resolve the question entirely of obstruction. Democrats will spin the Barr-Rosenstein decision as an effort to protect the president, and Republicans will declare victory. Mueller's whiff on a final, independent call actually may have been a disservice to us all.

But one lesson from this debacle, which Americans might find applicable to both the courts of law and public opinion, is worth grasping: A guilty man's conduct to get rid of prosecutors, to impact witnesses or to impugn an investigation looks a lot more like obstruction than an innocent man's similar actions during an effort to defend himself from bogus allegations.

In the absence of provable charges, the presumption of innocence still reigns supreme.

John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists' misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He serves as an investigative columnist and executive vice president for video at The Hill.

Outbrain