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Exactly five years ago, on Feb. 14, 2017, Donald Trump pulled FBI Director James Comey into the Oval Office and suggested he abandon the bureau’s ongoing investigation into Trump’s former national security adviser, Michael Flynn. That small request was, in its own way, momentous: It was an early link in the chain of events that led to Comey’s firing and the appointment of Special Counsel Robert Mueller.
Trump’s hint to Comey that day appears in the Mueller report as the first instance of potential obstruction of justice committed by the president.
And as of today, Feb. 14, 2022, the Justice Department will no longer have the option of prosecuting that case. The statute of limitations for the various federal obstruction of justice statutes is five years. Starting today, assuming no indictment materializes between now and then, it will preclude the department from bringing a case against Trump for asking Comey to back off of the Flynn matter. As the clock keeps ticking down through the summer of 2022 and the winter of 2023 and eventually runs down entirely in May 2025, the possibilities for prosecuting Trump on obstruction charges for other incidents detailed in the Mueller report will dwindle further.
The heat map below—updated from an earlier version published on Lawfare after the release of the Mueller report—shows how the special counsel evaluated the strength of the three common components of the obstruction statutes in the episodes he reviewed. These components include an obstructive act, a nexus between the act and an ongoing investigation, and corrupt intent. The columns on the right show when the statutes of limitations expire for the conduct identified by Mueller. The pardons granted by Trump to Michael Flynn, Paul Manafort, and Roger Stone in 2020, which could constitute an additional obstructive act, push the expiration date on the statute of limitations for those instances of obstruction back to 2025.
Heat map of Trump's potentially obstructive acts.
As the heat map shows, Trump’s suggestion that Comey drop the Flynn investigation is the first offense on which the statute of limitations will expire, though it’s not the instance in which Mueller seemed to feel he had the strongest case. Mueller found significantly more evidence for obstruction, for example, in two episodes concerning Trump’s efforts to fire the special counsel and hamstring his investigation. And in June and July 2022, the Justice Department will lose its ability to file charges for those two obstruction episodes.
Yet even as these deadlines loom, the Justice Department has still said nothing about Trump and the Mueller obstruction cases.
Nothing about potential charges against the former president in connection with Volume II of the Mueller report. Nothing about how it’s thinking about the expiring statutes of limitations on those charges. And nothing about whether the post-Trump Justice Department has even reviewed the allegations against Trump with a fresh eye—given that, within 48 hours of receiving Mueller’s report, Trump Attorney General William Barr determined that no case against Trump would have merit even if an indictment of a sitting president were possible.
A few weeks ago, the two of us wrote with Andrew Kent calling on Attorney General Merrick Garland to speak out about the status of the Mueller obstruction investigation. Garland had been, at that time, notably quiet so far in his role as attorney general, saying little to the public about the mission he has set for himself to reaffirm the Justice Department’s independence and integrity after years of decay under Trump. We argued that it is not possible for Garland to rebuild public confidence in the department without explaining his thinking on crucial issues on which Americans might reasonably expect the Justice Department to weigh in—like what the department is doing, or not doing, with Mueller’s evidence against Trump. Given only silence, the significant portion of the public who would like to see accountability for Trump’s abuses may conclude simply that yet another attorney general has decided to let the 45th president off the hook without giving it much thought.
Since we last wrote, Garland gave a major speech about the progress of the federal investigation into the Jan. 6 assault on the Capitol—and we’re glad he did. But he has remained quiet about the obstruction matters. At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.
Herein, therefore, some speculation. In our view, there are really only five possible explanations for the department’s current posture—some of them more likely than others.
The first possible explanation is that Garland considers the matter closed as a result of Barr’s having closed it. There is a long tradition of administrations not using the Justice Department to investigate their predecessors. And whatever Garland might regard as the merits of Barr’s action, he might have simply chosen to respect that the department formally closed the obstruction matters. Reopening an investigation of a former president after the administration has changed would, in the view of many, set a dangerous precedent in which each new administration could come in and reopen criminal matters involving the prior administration. And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn. The simplest explanation for the department’s apparent inaction may be that Garland has decided that institutional consistency requires a certain respect for prior judgments—even when they lack certain indicia of integrity.
True, attorneys general have not always acted this way. When the Obama administration came into office, Attorney General Eric Holder reopened a criminal investigation into some of the worst of the CIA’s abuses at its overseas black sites, and he asked the now-ubiquitous John Durham to reexamine certain decisions not to prosecute CIA figures for exceeding official guidance in those cases. But Durham spent years looking at the matters and ultimately ended up validating the Bush administration’s prior decisions not to pursue these cases. Garland may have simply decided, unlike Holder, to let sleeping dogs lie.
Second, perhaps the Justice Department has opted to review Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible. As Jack Goldsmith wrote when the Mueller report was first published, memos from the Justice Department’s Office of Legal Counsel (OLC) suggest that the obstruction statutes may not apply to the president absent a clear statement to that effect in the legislative text. At the very least, this raises legal questions about the viability of prosecuting Trump for any conduct that fell within the scope of his presidential powers—such as, for example, firing the FBI director or telling him to drop a case. Interpreted more expansively, the memos might even complicate obstruction charges for what appears to be outside Trump’s Article II authority—such as his efforts to prompt witnesses to lie or dissuade them from cooperating with the special counsel—so long as an application of the obstruction statute to that conduct could “arguably limit the President’s constitutional role” (emphasis added).
Whether or not you agree with this view of the obstruction statutes, what matters in this instance is what the Justice Department makes of it. It’s possible that the department under Garland has determined that the law is sufficiently unclear in its application to the president that a case against Trump wouldn’t be tenable—even if officials think that Trump really may have violated the law.
There’s one major piece of evidence in favor of this theory: the role of OLC itself. The office was involved in Barr’s 2019 decision to decline prosecution, as evidenced by an OLC memo, released publicly in May 2021, advising Barr to that effect. The memo is highly redacted, so the precise legal theory OLC adopted remains unclear, but OLC did write that “we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances.” So far, there has been no indication that OLC has revised or withdrawn any of its work from the last administration on this matter. When previous administrations have withdrawn OLC memos on high-profile issues, they’ve sometimes made that decision public.
A third possibility is that the Justice Department quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts. Barr, after all, made a series of factual judgments in his decision to close the matter. OLC refers to these in its memo providing recommendations for Barr’s ultimate decision-making. But unlike with the legal theory, we don’t have to speculate as to the basis for this judgment made by the Justice Department. The reason is that Barr explained the reasoning in a public statement at the time he released the Mueller report:
In assessing the President’s actions discussed in the report, it is important to bear in mind the context. President Trump faced an unprecedented situation. As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, 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. Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.
While it is inconceivable that Garland would describe the matter the way that Barr did, it is not inconceivable that the department—in reviewing it—agreed with Barr that factual problems in the evidence could make an obstruction case prohibitively difficult. This might actually be more true today than when Barr issued his statement, as the elapsed time is always the enemy of prosecutorial effectiveness. Even the release of the Mueller report itself may have made prosecutions more difficult; witnesses, after all, have spoken publicly about their interactions with the Mueller team about the underlying events—and these statements would have to be reviewed carefully by any prosecutors contemplating bringing a case.
Note that to have reached this judgment, the department would not have needed to conclude that Trump did not, in fact, commit a crime. All it would have had to conclude is that evidentiary factors would make it difficult to prove that he did commit a crime. Note also that this scenario is perfectly compatible with the second scenario. That is, just as Barr concluded that a combination of evidentiary and legal factors made a case impossible, it is plausible that Garland’s Justice Department reviewed the matter and concluded something similar. It is even possible that some combination of evidentiary and legal obstacles operated to inhibit the Justice Department from formally reviewing the matter at all. That is, the new Justice Department leadership may have decided not to let sleeping dogs lie (scenario number one) influenced by an awareness that any effort to move forward would face legal hurdles (scenario number two) and factual difficulties (scenario number three).
Then there is a fourth scenario: that the Justice Department quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones. If you look at the heat map in this post, the early cases of obstruction identified by Mueller are less compelling than the later ones. If you add to the heat map a key factor that prosecutors will consider—the question of whether Trump was plausibly exercising legitimate executive authority when he took the supposedly obstructive step—the later cases become more important still.
For example, in working to limit the scope of Mueller’s investigation, Trump asked his outside adviser Corey Lewandowski to pass a note to the Justice Department demanding that Mueller’s work be curtailed. And in ordering his White House Counsel Don McGahn to deny that Trump had pushed for Mueller’s firing, Trump told McGahn to falsify a record of the meeting in question. Mueller assessed both of these instances as presenting “substantial” evidence of obstruction on all three components of the offense, and neither incident touches on exercise of Article II authority. After all, the Constitution grants the president no Article II authority to falsify documents, nor does it bless any orders he might give to private citizens. The statute of limitations for these offenses expire in July 2022 and February 2023, respectively. A Justice Department seriously considering bringing charges against Trump might be inclined to focus instead on these instances, which both present particularly strong fact patterns for a prosecution and avoid the peskiest questions about the interaction between the obstruction statutes and Article II authority.
Likewise, Trump’s efforts to influence Manafort and Stone as witnesses by dangling pardons make for particularly strong cases—and, thanks to the fact that Trump granted those pardons in 2020, the Justice Department has an additional five years to decide how to handle them. Because the pardon power features in these incidents, they are somewhat more complex in terms of their interaction with presidential authority. But it’s certainly still possible that the Justice Department has reopened the obstruction matters but is focusing any ongoing criminal review on these later matters on which the statutes of limitations will not run for some time to come.
In this scenario, the department’s silence simply reflects the fact that these are pending matters, and the department has a strong norm against commenting on pending matters. It is also possible, along the same lines, that the department is thinking more in terms of a conspiracy to obstruct justice, a theory under which the statutes of limitations regarding the individual acts arguably becomes less important. If one thinks of Trump’s conduct over time as a long-standing pattern of obstruction and attempted obstruction, one could build a criminal case based on the broader fact pattern—which doesn’t end until much later than February 2017.
There is, it’s important to stress, exactly zero evidence to support the notion that the department has, in fact, reopened the matter. That said, the department is capable of operating leak-free when it really cares to, particularly when it is not taking overt investigative steps. Remember that to review these decisions, it would not need to issue subpoenas, execute search warrants or even contact witnesses. It would need only to review an existing investigative record that the Mueller team assembled and documented with great skill. While we have no reason to believe this scenario is reality, one cannot exclude the possibility either.
There is a final possibility that we also should not exclude: Maybe the Garland-run Justice Department never even considered the question of whether to, well, consider the question. This scenario is different from the first only in the limited sense that in this version, there was never an affirmative decision to let sleeping dogs lie.
In this scenario, the new team came in, was swamped by Jan. 6, voting rights, cryptocurrency and ransomware, and all the other things on the department’s plate. Rather than make a decision to let Barr’s closing of the Volume II probe stand, the new team simply never had occasion to revisit it. That is, in this scenario, the explanation lies in inertia, as opposed to institutional respect for the department’s prior actions.
There is one big reason to think that this simplest of explanations may be the reality: The department does not normally even contemplate reopening things without a triggering event. People like us have been thinking obsessively about Volume II of the Mueller report for years. But it’s nobody’s job at the Justice Department to think obsessively about Volume II of the Mueller report. Rather, everyone there has other jobs. And it’s not altogether crazy to imagine that nobody paused from their daily responsibilities and declared: “Hey everyone, we need to think about this—or, at least, think about thinking about this.”
In our view, the first scenario is probably the most likely, perhaps inflected by others. For one thing, it’s the most institutionalist explanation for the current silence, the explanation most keeping with the norms Garland is keen to reestablish. And while there are a lot of reasons to disfavor it, it has a lot to recommend it as an approach and would be particularly attractive to career prosecutors at the department who tend to dislike wild swings between administrations and anything that makes prosecutorial judgment seem like a function of politics. In particular, it avoids the ugly specter of one attorney general publicly explaining that he is closing a matter and giving his reasons for doing so—and the next attorney general reopening the same matter, which just happens to involve the president of the prior administration. This would send precisely the kind of strongly political message about the department that Garland is clearly not interested in sending.
That said, any of these scenarios is possible, and our main point is not that one is more desirable than the others. All are potentially justifiable approaches—though ones that reflect different values and priorities.
Our main point, rather, is that whatever the reality is, the department—and Garland himself—should say so. The Justice Department does not comment on pending investigations. It sometimes does, however, confirm the existence of such investigations. If, for whatever reason, there is no pending matter, there is no impediment to saying so. Garland could simply say that the Justice Department closed this investigation in 2018 and has not had occasion to reopen it since. He could also say, if this be the case, that the department does not habitually reopen matters because administrations change, and there has been no change in evidence since Barr closed the matter that would justify reopening it. He could even with total propriety say—if this were the case—that he has reviewed the decision to close the matter and agrees on the merits with the decision to close it.
The matter is more complicated if there is, in fact, an open review. But only a little bit more complicated. Here, too, a minimalist statement is doable. One way for Garland to confirm the existence of such a review, for example, would be simply to state that the department does not comment on pending matters. The press would do the rest. In the absence of any comment, though, all anyone can do is speculate.
The authors discussed this article on the Lawfare Podcast: