After a 22-month investigation into whether the Russians interfered with this nation’s 2016 presidential election and whether President Trump’s campaign colluded or coordinated with that foreign interference, the Special Counsel’s Report (“Mueller Report”) was delivered to U.S. Attorney General William Barr by Special Counsel Robert Mueller.
The Mueller Report, as hastily summarized by AG Barr, reached two conclusions: 1) Russia did in fact interfere in the 2016 election to assist their preferred candidate Donald J. Trump; and 2) the Trump campaign did not collude or conspire with that Russian interference. The Mueller Report left open the question of whether President Trump obstructed or attempted to obstruct any legal investigation into the Russian interference issue.
Obstruction of Justice
Federal obstruction of justice laws are numerous, difficult to apply, and not unexpectedly often misapplied. The six core statutes most often used by federal prosecutors are:
- 18 U.S.C. 1503 – obstruction of judicial proceedings;
- 18 U.S.C. 1505 – obstruction of congressional or administrative inquiry;
- 18 U.S.C. 1512 – witness tampering;
- 18 U.S.C. 1513 – witness retaliation;
- 18 U.S.C. 1001- false statement in any matter within jurisdiction of executive, legislative or judicial branch; and
- 18 U.S.C. 371 – conspiracy to commit one of the above or any other criminal act.
The media and other sources have outlined the numerous ways in which President Trump possibly obstructed justice. The obstruction statute most applicable to the inquiry surrounding the President, based on information known to the general public, is 18 U.S.C. 1505. This statute has three essential elements:
- There must be a proceeding pending before a department or agency of the United States;
- The defendant must be aware of the pending proceeding; and
- The defendant must have corruptly endeavored to influence, obstruct or impede the pending proceeding.
President Trump was intensely aware of the two U.S. Justice Department counter-intelligence investigations into Russian interference into the 2016 presidential election: 1) the FBI investigation opened in mid-2016 and the Special Counsel’s investigation opened in May 2017. Both investigations would qualify as a “proceeding” within the meaning of 18 U.S.C. 1505.
President Trump and Obstruction
As to the third element which was added by Congress in 1996, it could possibly be shown that President Trump acted “corruptly” with an improper purpose, personally or by influencing another, when he made false or misleading statements or withheld, concealed, altered, or destroyed a document or other information. There is ample evidence in the public record to believe it probable that the president acted corruptly to thwart both federal investigations into Russian interference.
Attorney General Barr and Deputy Attorney General disagreed, both unilaterally concluding that there was not sufficient evidence in either the public record or the Mueller Report to reach a probable cause determination that the president obstructed justice. The Justice Department reached this conclusion based on the premise that since there was no predicate criminal conduct of conspiracy or collusion by the president, there could have been no obstruction. This a slippery legal slope.
Six of Last Nine Presidents Embroiled in Obstruction
In their August 2018 article in the California Law Review (Vol. 106 Issue 4) titled “Presidential Obstruction of Justice,” Daniel J. Hemel and Eric A. Posner made this critical observation so relevant to the Trump obstruction issue:
“President Trump is not the first president to be accused of obstruction of justice. The first article of impeachment against President Richard Nixon, which was adopted by the House Judiciary Committee in 1974, accused him of obstructing the investigation into the Watergate burglary by interfering with an FBI investigation. The article also mentioned interference with the investigation by the Watergate special prosecutor, whose firing was ordered by Nixon. High ranking Reagan administration officials were indicted on obstruction of justice charges related to the Iran-Contra affair, and several of President Reagan’s opponents suggested that he may have committed obstruction as well (though those allegations were never proven). After President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who was one of the Reagan administration officials charged with obstruction in the Iran-Contra scandal, Bush was accused of obstructing the investigation into his own role in the scandal. The House impeached President Bill Clinton in 1998, based in part on obstruction of justice. The allegations against Clinton included charges that he had lied and withheld evidence in a civil action and lied to a grand jury. Obstruction of justice controversies also entangled the George W. Bush administration in the wake of firings of US attorneys, and the onetime chief of staff to Vice President Dick Cheney was convicted of obstruction. Amazingly, six of the last nine presidents, or their top aides, were embroiled in obstruction of justice scandals. The law of obstruction of justice has evolved into a major check on presidential power, without anyone noticing it.”
Reality/Guilt of “Collusion” is Immaterial to Obstruction Charges
The issue, as we see it, is straightforward: did President Trump endeavor with corrupt intent to influence the two federal investigations into Russian interference?
This question of whether the president did or did not obstruct, we believe, is not dependent upon whether he colluded or conspired with the Russians. Hemel and Posner agree:
“In this Article, we argue that the crime of obstruction of justice does apply to the president, but it applies in a special way because of the president’s role as head of the executive branch. As defined by statute and precedent, the crime of obstruction occurs when an individual ‘corruptly’ endeavors to impede or influence an investigation or other proceeding, and the word ‘corruptly’ is understood to mean ‘with an improper purpose.’ When the president impedes or influences an investigation with a proper purpose, he does not commit the crime of obstruction. The critical question, then, is when it is proper for the president to intervene.
“Article II of the Constitution suggests an answer to that question. It vests the president with ‘executive power,’ obligates him to ‘take care that the laws be faithfully executed,’ and gives some other roles and functions like that of commander in chief. When these authorities empower him to achieve certain goals, he is allowed to drop or block prosecutions and other enforcement actions that interfere with those goals. For example, if the president intervenes in an investigation because he thinks that national security demands it, he acts properly and not corruptly. Likewise, if the president decides in good faith that a particular investigation or class of investigations represents a poor use of scarce enforcement resources, he may block it (or them) without committing obstruction of justice. But if the president interferes with an investigation because he worries that it might bring to light criminal activity that he, his family, or his top aides committed—and not for reasons related to national security or the faithful execution of federal law—then he acts corruptly, and thus criminally. The Constitution does not authorize the president to employ his office for personal or partisan advantage and intervening in an investigation for that purpose is not a proper use of presidential power.”
No Answer to Question of Obstruction
The Barr/Rosenstein conclusion on the obstruction issue notwithstanding, the Mueller Report’s conclusion that it could not exonerate President Trump of having committed no crime leaves open the question of whether the president criminally obstructed justice. This question needs to be examined, and answered, by an independent body free of the conflict of interest Attorney General Barr has demonstrated through his pre-existing opinion regarding the investigation of Trump.
Presidents of the United States are not above the rule of law. They cannot improperly influence, much less demand, a certain outcome to a criminal investigation, especially when the investigation deals with the president, friends and family or administration.
In taking his self-indulgent victory laps in the wake of the Mueller Report, Trump has explicitly stated that no future president should be subject to a criminal investigation. If that assertion becomes a reality, then this country will no longer have a president; it will have a dictator.