The case for obstruction

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The case for obstruction

There are two major components of special counsel Robert Mueller’s investigation: 1. The possible conspiracy between the Trump campaign and Russia to influence the 2016 election, and 2. The possible obstruction of that investigation by Donald Trump.

Trump has been openly dismissive of the obstruction investigation, calling obstruction “a made up, phony crime.”

Trump should familiarize himself with 18 U.S.C. §§ 1503, 1505, and 1512. Obstruction of justice is a real and serious crime and has snared previous presidents.

The first article of impeachment drafted against Richard Nixon was for obstruction of justice. Bill Clinton was impeached on December 19, 1998, for obstruction of justice.

Making a bad situation worse, one tweet at a time

Trump woke up on Wednesday morning with serious legal problems. He then made things worse with the following tweet:

Donald J. Trump@realDonaldTrump

..This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!

August 1, 2018
Why? It has to do with the underlying facts and the law.

Let’s review.

“I hope you can let this go”

On February 13, 2017, Michael Flynn was forced to resign as national security adviser after he allegedly lied to Vice President Mike Pence about his conversations with Russian ambassador Sergey Kislyak. (Flynn said he didn’t discuss sanctions with Kislyak, but he did.)

The core of the obstruction case lies in a conversation between Trump and former FBI director James Comey that occurred the next day.

At that meeting, according to Comey, Trump cleared the room and asked Comey to end the FBI investigation of Flynn.

“I hope you can see your way clear to letting this go, to letting Flynn go... He is a good guy. I hope you can let this go,” Trump said, according to Comey’s testimony and contemporaneous notes.

Comey does not let it go

Comey did not follow instructions.

During a Congressional hearing on March 20, 2017, Comey confirmed there was an ongoing criminal investigation into a possible conspiracy between Russia and the Trump campaign.

[The FBI] is investigating the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts… this will also include an assessment of whether any crimes were committed.

According to press reports, later that month, Trump asked CIA Director Mike Pompeo and Director of National Intelligence Daniel Coats to intervene and ask Comey to back off the Russia probe. They refused.

Trump also called Comey and asked him to announce publicly that he was not personally being investigated. Comey did not do so.

Comey gets fired

On May 9, 2017, Trump fired Comey. The pretext for the firing was a memo written by Deputy Attorney General Rod Rosenstein. It argued Comey mishandled the Hillary Clinton email investigation.

Two days later, Trump told NBC’s Lester Holt that he decided to fire Comey because Comey insisted on pursuing the Russia investigation.

“[W]hen I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have won,” Trump said.

By that time, Attorney General Jeff Sessions had recused himself from the Russia investigation. Deputy Attorney General Rod Rosenstein then decided to refer the matter to a special counsel and appointed former FBI Director Robert Mueller, a lifelong Republican.

The law

There are at least three potentially relevant statutes (18 U.S.C. §§ 1503, 1505, and 1512). All prohibit attempts to “influence,” “obstruct,” or “impede” virtually any official proceeding with “corrupt intent.”

Here, Trump openly admitted to firing Comey in an effort to end the Russia investigation, which was targeting his campaign.

According to an extensive report by the Brookings Institution, “Many of President Trump’s alleged actions could potentially qualify as attempts to obstruct justice under Sections 1503, 1505, and 1512(c).”

Trump is confused

Donald J. Trump@realDonaldTrump

It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!

May 1, 2018
You can obstruct justice by impeding an investigation. It doesn’t matter whether the investigation uncovers any crimes.

Mueller’s investigation, nevertheless, has already uncovered numerous crimes. Flynn, for example, pleaded guilty.

No obstruction (with exceptions)

In April, Trump appeared to admit that he was attempting to obstruct justice. In a tweet, Trump said that he was not obstructing justice except to “fight back.”

Donald J. Trump@realDonaldTrump

....doing things that nobody thought possible, despite the never ending and corrupt Russia Investigation, which takes tremendous time and focus. No Collusion or Obstruction (other than I fight back), so now they do the Unthinkable, and RAID a lawyers office for information! BAD!

April 11, 2018
There is no “fighting back” exception to the obstruction of justice statutes.

Back to Wednesday’s tweet

This is where yesterday’s tweet comes in. Publicly calling on Sessions to end the investigation is more evidence of Trump’s “corrupt intent” in firing Comey. It’s showing that he’s motivated — then and now — to end the investigation into his campaign, his associates and himself.

It suggests he wasn’t firing Comey for a legitimate purpose, like the job performance issues outlined in the Rosenstein memo, but an illegitimate purpose — to protect himself and his friends from legal peril.

Trump’s lawyers, apparently sensing the legal issues with the tweet, quickly told reporters that Trump was merely expressing his “opinion” about the investigation.

Rudy Giuliani was especially dismissive, deriding criticism of Trump’s public statements as a “bizarre and novel theory of obstruction by tweet” and “idiotic.”

One person who doesn’t think it’s idiotic is Mueller, who reportedly is looking closely at Trump’s tweets as part of his obstruction investigation.

What Trump’s defenders say

Trump’s defenders say that firing Comey could not be obstruction of justice because Trump has the authority to fire anyone in his administration. But that is an oversimplification of the law. Just because you have the power to do something doesn’t mean it’s legal in all cases.

A federal judge, for example, has the authority to rule for the plaintiff or the defendant in any given case. But it’s not legal for a judge to rule for the plaintiff because the plaintiff paid him $10,000. Here, Trump’s own words may constitute evidence of corrupt intent, potentially making an otherwise legal act illegal.

The pardon problem

Trump and Giuliani have floated the idea of pardoning key witnesses in the Russia investigation. Giuliani suggested that Trump would pardon Paul Manafort, Trump’s former campaign manager whose criminal trial started this week, after his bail was revoked in mid-June.

Chris Sommerfeldt@C_Sommerfeldt

NEW: Rudy Giuliani tells @NYDailyNews "things might get cleaned up with some presidential pardons" when the "whole thing is over" in light of Paul Manafort being sent to jail.

Story TK.

June 15, 2018
Trump was slightly less explicit but certainly hinted that Manafort deserved a pardon in a tweet on Wednesday.

Donald J. Trump@realDonaldTrump

Looking back on history, who was treated worse, Alfonse Capone, legendary mob boss, killer and “Public Enemy Number One,” or Paul Manafort, political operative & Reagan/Dole darling, now serving solitary confinement - although convicted of nothing? Where is the Russian Collusion?

August 1, 2018
While the pardon power is absolute, dangling pardons to entice witnesses not to testify is likely unconstitutional and may itself be obstruction of justice.

A question of intent

In the end, obstruction of justice is a crime of intent. Trump is openly trying to impede the investigation. The more difficult question to prove is whether he is doing so with “corrupt intent.”

It’s possible to infer intent from Trump’s public statements and tweets. They don’t look good. But the centrality of intent explains why Mueller is still interested in interviewing Trump.

An interview would give Mueller a chance to question Trump directly about his intent. In such an interview, Trump would be boxed in by his previous public statements. He would be faced with the difficult decision of either confirming his previous statements or contradicting himself.

It’s unclear if Trump has enough knowledge of the underlying legal issues to avoid incriminating himself.

Then and now: Trump and violence

“The president, as I just said, does not support violence against anyone or anything.” — White House Press Secretary Sarah Sanders, 8/1/18

“If you see somebody getting ready to throw a tomato, knock the crap out of them. I'll pay the legal fees.” — Donald Trump, 2/1/16

Paul Manafort’s taste in clothes

Paul Manafort, Trump’s former campaign manager, is on trial this week in Virginia.

Manafort is charged with “disguising more than $30 million in overseas income by moving it through offshore accounts, lying to banks and evading taxes.” (That number was later increased to $60 million.) The money allegedly came from “the Ukrainian government and Ukrainian oligarchs to promote a pro-Russian leader, Viktor Yanukovych.”

Prosecutors emphasize that Manafort used these funds to finance a lavish lifestyle, including over $1 million in designer clothing. The government posted photos of these clothes, which are something.

This python jacket cost $18,000:

A couple of other selections:

You can find the rest of Manafort’s wardrobe here.

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