Republicans don't care that Trump colluded with Russia — but independents might

Now let’s cover Trump’s obstruction of justice. According to Merriam-Webster, “obstruction” is a relatively straight-forward term. To obstruct something means to “block” it, to “hinder from passage, action, or operation.” The executive branch of the federal government enforces the law, and the president heads that branch. It should not be enough to simply avoid the criminal standard of obstruction of justice: the president should be the last person blocking or hindering an investigation, if that president cares at all about justice that is. Does Trump care about justice? The special counsel did not render judgment on that question.

However, the Mueller report did lay out 11 instances of potential obstruction of justice, which I’ll list here:

• Misleading statements about his ties to Russia
• Asking then-FBI director James Comey to end an investigation
• Attempts to stop then-Attorney General Jeff Sessions from recusing himself from the Russia investigation
• Trying to get Sessions to resume control of the inquiry
• Reacting to the disclosure that his campaign was under investigation
• Firing Comey
• Reacting to the Mueller appointment and trying to fire him
• Misleading statement about meeting with Russians
• Trying to oust Sessions
• Talking to witnesses about testimony
• Interacting with his personal lawyer

Obstruction of justice is a legal term, one used by lawyers and prosecutors to define a crime. On the matter of criminality, here’s what the Mueller report had to say:

Because we determined not to make a traditional prosecutorial judgment , we did not draw ultimate conclusions about the President 's conduct. 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, however, we are unable to reach that judgment.

The evidence we obtained about the President 's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Note the part about “applicable legal standards.” That refers to the policy statement issued by the Department of Justice, led by Trump spokesman—technically known as Attorney General—William Barr, that a sitting president cannot be indicted. That policy statement explains why Mueller did not state that Trump committed the crime of obstruction. Here is the relevant section of Mueller’s report:

We considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person's conduct "constitutes a federal offense." U.S. Dep't of Justice, Justice Manual§ 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast , a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC [White House Office of Legal Counsel] noted similar concerns about sealed indictments. Even if an indictment were sealed during the President's term, OLC reasoned, "it would be very difficult to preserve [an indictment 's] secrecy, " and if an indictment became public, "[t]he stigma and opprobrium" could imperil the President's ability to govern." Although a prosecutor's internal report would not represent a formal public accusation akin to an indictment, the possibility of the report 's public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining "that the person's conduct constitutes a federal offense."

Mueller makes clear that, even though he wasn’t going to “make a traditional prosecutorial judgment,” he believes that Congress absolutely can take up the matter, should it deem Trump’s conduct—which he laid out in detail—to be potentially impeachable:

Under applicable Supreme Court precedent, the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers. The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those of courts and grand juries, from corrupt, obstructive acts regard less of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President's ability to fulfill his constitutional mission.

[snip] For example, the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment. To the contrary, a statute that prohibits official action undertaken for such corrupt purposes furthers, rather than hinders, the impartial and evenhanded administration of the law. It also aligns with the President's

constitutional duty to faithfully execute the laws.

[snip] The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

There’s one more section on obstruction I want to mention, as it is especially damning. It makes clear that Trump issued orders aimed at directly interfering with the investigation into his activities, but the only reason they didn’t happen is that his underlings refused to carry them out—which, by the way, also says a great deal about the esteem with which this ‘leader’ is held by those whom he ostensibly leads:

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.

Let’s assess what the Mueller report found overall. Saying that Trump acted in a Nixonian fashion might be an insult to the integrity of Richard Nixon. The fact that such a thing is even possible should tell voters everything they need to know about Trump’s fitness to be our president, to be the chief defender of our Constitution, the rule of law, and our democratic institutions. He has, time and again, taken actions to undermine each of those things, actions that once were considered by Americans of every political persuasion to be beyond the pale, actions that, had a Democrat named Barack Obama taken them, would have moved Trump’s own supporters to demand far worse than impeachment and removal from office. As the New York Times editorial board wrote: “That the president’s norm-shattering behavior has become so flagrant and familiar doesn’t make it right.”

The difference is that, in the aforementioned hypothetical scenario—one that would never happen given Obama’s basic integrity, ethics, and deep respect for our values and institutions—most progressives would have agreed that he could no longer serve as our president. But the question before us now is what will voters do in this very real scenario, one in which the president of the United States colluded with a foreign power, and very clearly obstructed a duly constituted investigation into that collusion?

I don’t expect that most hard-core Trump supporters, who probably constitute about one-third of American voters, will be moved one iota by this information. We can probably add another few percent if we expand that category to those who may not love Trump, but who are so partisan and who hate liberals so much that they’d vote for any moron, hack, or otherwise unqualified candidate with an (R) ...oh, yeah, they already did that.

On the left side of the spectrum, the report probably won’t change much either, and I doubt it will convince too many progressive-minded voters who would otherwise have stayed home to come out and vote. My sense is that such voters already don’t like Trump and already knew he was essentially corrupt, but that this report won’t affect whether they vote or not. Such potential voters are more likely to be motivated to vote by a sense that his Democratic opponent will have a real impact on their daily lives, in particular in matters of justice (economic as well as racial, gender, and other-identity related aspects).

Finally, we have independent voters—and what matters are the real independents, ones who actually could be convinced to go either way, or cast a third-party vote. They might well be influenced at least somewhat by the Mueller report. Polling suggests that independent voters trust Mueller, something that is very bad news for Trump.

In 2016, The Man Who Lost The Popular Vote actually won independents, 46-42. The math tells us that independents were approximately one-third of Trump’s voters, representing about 20 million votes. At least some of these voters are open to persuasion. Some could be turned from Trump voters to Democratic voters, or at least to third-party voters, or maybe they’ll get so turned off by Trump that, even if they are unwilling to vote for the Democratic nominee, they’ll just stay home. Any of these outcomes would hurt Trump in 2020. Additionally, around 8.5 million people voted for someone other than Clinton or Trump. Perhaps some of them will be so disgusted by the Mueller report that they will decide to vote Democratic.

Trump’s path to victory, such as it exists, appears to be quite narrow. Although things can certainly change, his approval rating still remains three to four points below that of Obama or Bill Clinton at this point in their presidencies. Both Obama and Clinton had already bounced significantly off their low point, while Trump is barely above his. With approval ratings around 41-42 percent, Trump will need to win at least a decent chunk of the votes of those who don’t approve of the job he is doing. Last time around he got just enough of those in just enough of the right states to eke out an Electoral College victory against an opponent who had approval ratings just about as bad as his. It won’t be easy to repeat that performance.

I sincerely hope the American people are paying attention to the Mueller report. I hope Mueller ends up testifying to Congress about his report (as of this writing, House Democrats are in negotiations with the Department of Justice to make that happen). I’d love to see William Barr grilled about the discrepancies and outright lies he told while spinning for his boss about the report, but that’s another matter. Congress should continue to explore the matters raised by the report, including further matters we haven’t been able to see because of Barr’s redactions.

What we do know is this: Barring something completely unforeseen, Donald Trump will be on the ballot in 2020. I hope that open-minded voters gain a thorough understanding of just what is in the Mueller report, and then ask themselves whether they want a president who acts the way this one does. I hope they ask themselves whether our democracy can survive another four years with him in charge.

Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (forthcoming in May 2019).