The Mueller Report and the Behavior of Obstruction

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Todd A. Ward, PhD, BCBA-D

bSci21Media, LLC

Special Counsel Robert Mueller’s investigation and subsequent release of his Report on the Investigation into Russian Interference in the 2016 Presidential Election represents one of the most important behavioral events of our time.  It depicts a real-life struggle within Skinner’s Controlling Agencies – those cultural institutions which exert powerful effects on the contingencies we encounter in our daily lives.  It also reads like one who is operationalizing behavioral definitions and collecting data to determine its occurrence, and to determine the “intent” of Trump.  Behaviorally, we might say the latter is an attempt to determine the functions of Trump’s behavior.  Moreover, it depicts the complexities inherent in doing so within a complex governmental system whose focus is a sitting President.  As such, I encourage everyone in the behavioral science community to read it.  Online versions are available through the New York Times and CNN.

The report has two volumes.  Volume I focuses squarely on the Russia question.  It “describes the factual results of the Special Counsel’s investigation of Russia’s interference in the 2016 presidential election and its interactions with the Trump Campaign.” The introduction states plainly, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” The report goes on to discuss various social media misinformation campaigns and “computer-intrusion operations” against the Clinton campaign by Russian intelligence.

With regards to the question of “collusion”, as heard repeatedly in the media.  The team noted that the term “is not a specific offense or theory of liability.” Instead, the team “applied the framework of conspiracy law.”  Thus, the team investigated the degree to which the Trump campaign “coordinated” with Russian officials.  In this context, “coordinated” has a very specific meaning.  They note that it “requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interest.”  Coordination, in this context, requires a tacit or express agreement.

The conclusion of Volume I is summarized in the following passage:

“Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

In other words, the investigation didn’t find sufficient evidence of an agreement between the Trump Campaign and Russian intelligence.

Volume II deals with the question of obstruction as it relates to the investigation described in Volume I.  The second volume came about in response to Trump’s own reactions to the Russia investigation “that raised questions about whether he had obstructed justice.”

The obstruction investigation is complicated by the fact that the person under investigation is also a sitting President.  The team decided to accept an opinion from the Office of Legal Counsel which stated that prosecuting a siting President “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” However “a criminal investigation during the President’s term is permissible….a President does not have immunity after he leaves office.”

The complications are further amplified because the team “determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”  The reasoning was that “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” which “would be heightened in the case of a sitting President.”

Given the intricacies involved in the obstruction case, the team noted that “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.”

In sum, Russia interfered with the election, but there may not have been an agreement in place between the Trump team and Russia to influence the election results.  However, the question of obstruction remains open due to the difficulties inherent in prosecuting a sitting President and Mueller’s clear concern for preserving the criminal justice system.

Below, we can take a look at a few specific events investigated by the team.  The overarching question that the team needed to answer was one of intent.  Behaviorally, we might say the question had to do with the variables of which Trump’s behavior was a function.

The report outlines several specific acts by the President that raised questions of obstruction, but the motives of the President were sometimes unclear and seemed to shift over time.  The team noted that, although their evidence did not implicate the President in any crime related to Russian interference, the President persisted in actions that appeared to thwart the investigation.  The team noted “the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.”  In other words, since Trump was not implicated in a conspiracy with Russia, his actions point to other possible motives.

The report then goes on to describe several distinct events that were the focus of the obstruction investigation, some of which are described below.

“This is the end of my Presidency. I’m f-cked.”

Those were the comments Trump made to advisors after he learned that Attorney General Jeff Sessions appointed a Special Counsel to conduct the investigation into Russian election interference.  Sessions elected to recuse himself from the investigation due to conflicts of interest resulting from his involvement in the Trump campaign.  According to Sessions, Trump said “How could you let this happen, Jeff?” and “you were supposed to protect me.”

Doing as Nixon Did – Efforts to Remove Special Counsel 

Before Trump fired FBI Director James Comey, the President was repeatedly told he was not personally under investigation.  That changed after Comey was fired.  Trump then pressured Donald McGahn, the acting Attorney General, to remove the Special Counsel due to conflicts of interest.  McGahn, refused and decided “that he would rather resign rather than trigger what he regarded as a potential Saturday Night Massacre.”  The latter referenced a series of events in 1973 when President Nixon did exactly the same thing as Trump – he ordered then Attorney General Elliot Richardson to fire special prosecutor Archibald Cox during the Watergate scandal.  Like McGahn, Richardson refused and resigned.

Flynn

Then National Security Advisor Michael Flynn lied to various administration officials and the FBI in denying that he met with Russian Ambassador Sergey Kislyak about Russian sanctions in response to its interference in U.S. elections.  When Trump heard that Flynn lied, he met with FBI Director Comey “and told Comey that he needed loyalty.”  The President requested that Flynn resign, and after he did Trump said “now that we fired Flynn, the Russia thing is over.”  Trump subsequently pressured Sessions to drop the FBI investigation into Flynn.

Manafort and Cohen

When Paul Manafort, former Trump Campaign chair, was convicted on eight counts of financial fraud, the report noted that “the President called Manafort ‘a brave man’ for refusing to ‘break’ and said that ‘flipping almost out to be outlawed.”  Similarly, after the FBI searched the home of Michael Cohen, Trump’s personal attorney, Trump “asserted that Cohen would not flip” and reached out to encourage Cohen to “stay strong.”  However, when Cohen started cooperating with the investigation, Trump referred to him as a “rat.”

Intent, and the Definition of Obstruction

The team noted “many of the core issues in an obstruction-of-justice investigation turn on an individual’s actions and intent.”  The report states that an obstruction case constitutes three things: an act of obstruction, a nexus between the act and an official proceeding, and a corrupt intent. An obstructive act is an act “that prevents justice from being duly administered, regardless of the means employed.’   Importantly, the report states that a lawful act can become a criminal act if done with “an improper motive.”  Corrupt intent, in this case “means acting knowingly and dishonestly with the specific intent to subvert, impede, or obstruct.”

In an effort to further investigate intent, Mueller requested interviews with the President, which were denied. Though he could have issued a subpoena to get him to testify, Mueller decided not to do so as it would introduce significant delays in an already-long investigation, according to the report.  Thus, Mueller never had the chance to ask the President directly about the intent of his actions.

Conclusion

In the real world, we cannot always determine the function of an action with the precision of a controlled research environment.  Function, in this case, refers to what an action achieves.  Traditionally, there are four main functions – attention, escape, tangibles (e.g., money, or other objects), and sensory stimulation.  Topographically, Trump’s actions would suggest that the Russia investigation was aversive, and that he wanted it to end.  He repeatedly made attempts to end the investigation, and he repeatedly accused people of “flipping” as if they divulged information that would somehow damage Trump.  The intent, or functions, of these and many other actions in the report, came across as puzzling to the Mueller team because he was not implicated in any conspiracy with the Russians.  Moreover, the larger governmental systems in place, within the context of a sitting President, further complicate and cloud attempts to determine intent.

Perhaps after Trump’s Presidency, we will know more.

What’s your take on the Mueller report?  Let us know in the comments below, and be sure to subscribe to bSci21 via email to receive the latest articles directly to your inbox!

Todd A. Ward, PhD, BCBA-D is a science writer, social philosopher, behavioral systems analyst, and the President and Founder of bSci21Media, LLC, which aims to connect behavioral science to the world in an engaging, non-academic way.  Dr. Ward received his PhD in behavior analysis from the University of Nevada, Reno under Dr. Ramona Houmanfar.  He has served as a Guest Associate Editor of the Journal of Organizational Behavior Management, and as an Editorial Board member of Behavior and Social Issues.  His publications follow a theme of behavioral systems analysis, organizational performance, theory & philosophy, and language & cognition.  He has also provided ABA services to children and adults with various developmental disabilities in day centers, in-home, residential, and school settings, and previously served as Faculty Director of Behavior Analysis Online at the University of North Texas.  Dr. Ward can be reached at todd.ward@bsci21.org.

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