For those of you who follow us, hopefully you can recall parts I and II of our analysis of the Mueller report, one of the most important internal investigations in the last century. If you have not read them yet, you can find them here and here. If you have not read the report, it can be found here. Today, we’re talking about the most significant portion of the report – the Special Counsel’s findings as to the President potentially obstructing the investigation.
In 2000, years prior to the start of the Mueller investigation, the Office of the Legal Counsel issued an opinion stating that “the criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Because of this, the Special Counsel was limited in its investigation and ability to refer any possible charges against the President for prosecution. Thus, the Special Counsel was limited to a “thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”
As a self-imposed constraint in the interest of fairness to the President, the Special Counsel also determined it would not apply “an approach that could potentially result in a judgment that the President committed crimes,” and made no assessment as to whether the President’s conduct constituted a federal offense.
Such limitations are not dissimilar from the task given an employment investigator, who, at times, is not given authority to either make determinations in regard to policy violations or proceed with discipline of the employee after such determinations. It is up to the employer to make decisions as to those issues, but it is the investigator’s task to lead the decision-makers down a path to the appropriate conclusion.
Again, the structure of the Special Counsel’s report plays an important role in that process. The Special Counsel does not follow the traditional IRAC (Issue, Rule, Analysis, Conclusion) structure of legal analysis, and after a brief description of the Obstruction of Justice laws applicable to federal investigations, focuses on laying out a chronological sequence of events emphasizing the steps taken by the President before the election and following the commencement of the investigation.
While the Special Counsel was unable to come to a conclusion as to whether the President violated the laws prohibiting obstruction of justice, it provided what appears to be extensive evidence of steps taken by the President that might support that conclusion. These steps include efforts to remove the Special Counsel, terminate the FBI Director, prevent disclosure of e-mails about meeting with Russian officials, and influence the participation of current and former staff members.
If you’ve done an investigation before, these are steps that, if perpetrated by the subject of the investigation or a known ally, might lead to an inference that a witness was attempting to cover up his or her conduct. The majority of these acts were completed in open view of the public (or remarked upon in social media). Actions taken by the subject of an investigation or other witness to impede fact gathering or other parts of an investigation should be taken into account when weighing credibility and making factual determinations.
Finally, in effort to assist the ultimate decision-makers in this matter (whenever that might be), the Special Counsel lays out the defenses, both legal and constitutional, that could be used by the President if faced with an obstruction of justice charge. Not only that, but the Special Counsel also lays out the counter-arguments for those possible defenses. Thus, while the Special Counsel could not come to a conclusion as to whether the President committed obstruction of justice, it provides potential legal arguments for those who might, in the future, attempt to prosecute or take other action against the President.
The Special Counsel’s report on the conduct of the President and his campaign is a well-written and structurally sound document that aides its readers and those who may make a decision based on that conduct. The report is tailored specifically to provide the most necessary and crucial information to readers. It is a report where the technique and structure can be mimicked by all when putting together a report for your clients.
If you or your company need help with your investigations, or your reports, contact the Wiley Law office, for advice that works.