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Writer of Special Counsel Regs: Mueller’s Obstruction ‘Road Map’ Is ‘Devastating’ for Trump


Former acting Solicitor General of the United States Neal Katyal, who worked in that role during Barack Obama‘s presidency, argued that Special Counsel Robert Mueller‘s obstruction “road map” is “devastating” for President Donald Trump.

Katyal, who actually wrote the Special Counsel regulations that governed Mueller throughout his Russia investigation, joined MSNBC host Ari Melber on Monday for a segment on the “road map” and walked through the legal elements of obstruction of justice.

As we know, Mueller did not reach a conclusion on obstruction of justice, but, in Katyal’s estimation, the way Mueller outlined the fact patterns of key events “point[s] to a crime.”

Although Mueller discussed more than five obstruction-related moments at length, Melber and Katyal focused the conversation on the following: Trump asking then-FBI Director James Comey to take investigative heat off of National Security Advisor Michael Flynn (who later pleaded guilty to lying to the FBI); subsequent attempts to remove the Special Counsel; “order[ing] aides to lie” about such attempts; other attempts to curtail or influence the investigation; attempts to have then-attorney General Jeff Sessions unrecuse himself and run the Russia probe.

Here’s a snippet of what Mueller himself had to say about all of this:

The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. [James] Comey did not end the investigation of [Michael] Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. [Don] McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. [Corey] Lewandowski and [Rick] Dearborn did not deliver the President’s message to [Jeff] Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to accede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so.

Katyal noted that with obstruction of justice, you need to have: an obstructive act (“something Trump did that in some way obstructed justice”); a nexus between what the president did and the ongoing legal proceedings; and “corrupt intent.”

“With respect to the first,” Katyal said, referring to the Trump-Comey encounter over Flynn, “the allegations that the Mueller report lays out are really quite devastating.”

“They show that Trump went and said to Jim Comey in the Oval Office ‘You should really let Michael Flynn go,'” Katyal continued. From there, he said, the nexus between that request and the criminal investigation of Flynn was obvious. Finally, regarding corrupt intent, Katyal pointed to evidence that Trump “thought Flynn was lying” about Russia and sanctions, and acted accordingly to make the problem go away.

From there, the discussion shifted to efforts to remove Mueller, ordering of aides to lie and other steps taken to curtail the Russia probe.

“All three seem to have very similar intent,” Melber said.

“Bottom line is it’s terrible for the president,” Katyal replied.

Mueller noted that Trump “reacted negatively to the Special Counsel’s appointment,” “told advisors that it was the end of his presidency, sought to have Attorney General Jefferson (Jeff) Sessions unreguse from the Russia investigation and to have the Special Counsel removed, and engaged in efforts to curtail the Special Counsel’s investigation and prevent the disclosure of evidence to it, including through public and private contacts with potential witnesses.”

Mueller ultimately cited an Office of Legal Counsel opinion which says that it is against DOJ policy to indict a sitting president. Attorney General William Barr and Deputy Attorney General Rod Rosenstein independently concluded that the evidence of obstruction “wasn’t sufficient” to allege that a crime had been committed.

Leading impeachment experts, such as CNN legal analyst and attorney Ross Garber, were quick to interpret the obstruction portion of the report (The Mueller Report Vol. 2) as “plainly an impeachment referral.”

While Rudy Giuliani is busy daring Democrats to impeach the president, Democrats are busy disagreeing amongst themselves about how exactly to proceed.

Trump himself has said that he’s not worried about it — “Not even a little bit.

[Image via MSNBC screengrab]

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Matt Naham is the Senior A.M. Editor of Law&Crime.