What the Mueller Report says about Obstruction

Prior to reading the Mueller Report, I naively thought that all the "obstruction" talk referred to Trump's attempts to hinder Comey's or Mueller's Collusion Investigations. However, the Report does not discuss a single action that would fall within this description. Of the 16 actions reviewed by the Special Counsel for potential obstruction:

• Zero were against collusion investigations

• Seven were against obstruction investigations (what I call 2nd order obstruction)

• One was against 3rd order obstruction (potential obstruction of potential obstruction of an obstruction investigation) - see the final item in the table

The Report sets out the legal test for an act to be considered "Criminal Obstruction of Justice." This is a three-part test (all three must be present):

1. Does the act obstruct? Basically anything that "hinders" a government process (or has a strong "likelihood" to do so) counts even if the effort fails (i.e. attempted obstruction = obstruction)

2. Is the act connected to an open case? The test here is NOT whether you are found guilty, only that a case is open (so the fact that there is no collusion does not end obstruction questions)

3. Was there intent to break the law? The report says that "circumstantial evidence" can be enough to prove "knowingly" acting

With these introductions, please see the following table summarizing the 16 acts and how the Report assessed the three-part test for each one, followed by notes.

Notes:

1. The Report says that when a President performs an act from Article 2 of the Constitution, then that act is not subject to legal review (obstruction). Instead, that act is subject to political review (impeachment). The 3-part legal test is therefore not applicable to "Presidential Acts."

2. As noted in post #5, Criminal Obstruction requires a "Yes" vote for each part of the legal test

3. I personally find it hard to understand how someone can have intent without performing an obstructive act or without an open case

4. The Report's discussion of intent is basically that Trump didn't like the Russia Collusion Investigation

5. "Not analyzed" means that the Report either fails to discuss that part of the test at all, or that the discussion ends with a question instead of an answer

6. "Unclear" means that after reading the Report's discussion, I don't know whether it means "Yes" or "No."

7. Prior to reading the Report, I naively thought that all the "obstruction" talk referred to Trump's attempts to hinder Comey's or Mueller's Collusion Investigations. However, the Report does not discuss a single action that would fall within this description.

8. This looks like a "Presidential Act" to me, called prosecutorial discretion. Normally, when a prosecutor is faced with investigating himself, he recuses and let's someone else investigate him. Obviously, a President cannot recuse himself (from being President). I believe this is why the Constitution gives the impeachment power to Congress.

9. By the Report's logic, every act of prosecutorial discretion could be considered connected to an open case in the legal test of obstruction. As noted in note #8, recusal normally ensure that this does not coincide with personal interest.

10. Since the legal test is only valid with three "Yes" votes: Yes + Yes + Unclear = No (not Criminal Obstruction). Also, I doubt both the "Yes" votes, as in notes #8 and #9.

11. Prior to reading the Report, I expected firing Comey to be directly related to Comey's Collusion Investigation. But the Report's discussion of the "open case" test only found a connection to Flynn's Perjury case.

12. "Unknown" means the Report used the term "unknown" in it's discussion.

13. "Maybe" means that after reading the Report's discussion, I don't know whether it means "Yes" or "No," but I am slightly leaning toward "Yes."

14. Since the legal test is only valid with three "Yes" votes: Maybe + Yes + Yes = No.

15. Cohen eventually entered a plea deal in exchange for testimony. Cohen admitted he paid off some women for Trump. Cohen also admitted that Trump had prior knowledge about Russian involvement in the Trump Tower meeting (but the Report calls this statement by Cohen "false").