Here are two links you can use to check the meaning of the term “Obstruction of Justice”. Wikipedia and the Ohio State Bar Association.  Andrew McCarthy, a former federal prosecutor, and currently publishing in the conservative publication National Review, wrote this article saying that it was his opinion that Trump did not commit obstruction of justice.  I quote (underlines mine):

It is true that federal statutes criminalizing obstruction of the administration of law — including by agencies such as the FBI — cite not only actual interference with an investigation but attempts to do so as well. That is, the fact that the investigation of Flynn, a close Trump campaign adviser who would briefly serve as his national security adviser, was never actually shut down cuts against the case for obstruction, but it is not dispositive.

But the arguments for presidential obstruction here tend to omit the statute’s most important word: “corruptly.” Not every form of interfering with an investigation, or even the closing down of an investigation, is felony obstruction. Only corrupt ones. Prosecutors must prove beyond a reasonable doubt that the accused not only acted intentionally but also with an awareness that his actions violated the law.

McCarthy also states:

The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates.  That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do.

[bypassed text]

This was clearly not corruption. And without corruption, there cannot be obstruction.

So the basic conservative argument is that since the President is the chief of the executive branch, his orders are legal, and therefore corruption is not possible.

The superficiality of this reasoning is stunning. It is amazing that this person passed his bar exam. I have never seen any text that explicitly states that “everything the president orders is legal, and not subject to US law”. Certainly there is latitude for the president to act extra-legally as regards foreign citizens and countries that are not specifically covered by US law. The president could not on his own authority call for the Governor of California to be killed, and avoid legal consequences for that act. Simply stated: the president is not above the law. If a citizen performing certain actions is deemed to have committed a crime, then when the president commits those same actions, he is also deemed to have committed that same crime. The definitions do not change because a defense lawyer wants to take advantage of less than perfect wording that exists in the US Constitution, or because that lawyer wants to draw a logical conclusion from that vagueness that would upset the nature of interpretation of the law.

The underlined texts in McCarthy’s article are the most important items in this discussion of obstruction of justice. Summarizing these excerpts:

  • attempts to interfere are relevant to obstruction
  • the perpetrator has to know that the attempts are illegal

The word interference covers more than just a stoppage of the investigation. Causing evidence to be ignored or destroyed would also be interference. Causing a delay that allowed others to destroy evidence would be obstruction. Attempts at any of these (and other) actions would be consistent with obstruction of justice.

Regarding the perpetrator’s intent, did Trump know that his actions were illegal? Unless he were to specifically confess “I know my actions were illegal”, we can expect that his defense lawyers will try and say that he did not know, or that, like McCarthy, it doesn’t matter. We can note that a consistent talking point of Trump in the 2016 elections was about Clinton speaking with Loretta Lynch on the airplane, where they met for 37 minutes was corrupt, and that this proved she was unfit to be president. This certainly seems to show that he had reason to know that his actions with Comey were at least in need of clearance by the DOJ. Then there is the troublesome detail of Trump asking other senior officials to leave the room before he had his discussion with Comey. That is quite consistent with someone who knew he was doing something wrong, and needed to get rid of possible witnesses.

There has been a long history of the White House defining its procedures of communications with the DOJ. If Trump didn’t know that, he should have. He also should have known that he had help available (like Jeff Sessions) to make sure he was acting correctly. Ignorance of the law is no excuse, as anyone who has ever told a traffic policeman or policewoman that they hadn’t read the sign can tell you. That he tried to interfere, and knew it, can hardly be in doubt, as the text of the interview with Lester Holt shows:

And in fact, when 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’ve won.

This clearly establishes the link between his action and his motivation. He wanted the distraction of the investigation to stop. Speculation that he wanted it to stop to protect himself need not be proven. He is admitting that he wanted the investigation to stop, and his firing Comey might have that effect.

Lastly, there is the ‘why’. While ‘why’ is not strictly relevant to the charges, it is quite a matter of interest to the American people. It might also suggest further areas of investigation for Special Prosecutor Mueller, who has the latitude to pursue “matters arising from this investigation”.  Trump has famously sacrificed anyone to avoid consequences to himself. The idea that he would tread this ground out of loyalty to Mike Flynn should be laughable. In my last article, I showed the timeline of Mike Flynn’s activities, and of when the White House knew of them. This showed that Trump was powerfully motivated to stop the Flynn investigation lest it spread to him.

So it looks as though the two points above are satisfied. Beyond that, Trump’s tweets disparaging the FBI, Comey, Rosenstein, and Mueller would be reasonably construed as an attempt to get them to change their behavior, presumably to get him off their back.  It appears that Trump knowingly attempted to affect the FBI criminal investigation into Mike Flynn. That there is an investigation into this matter is the most natural and reasonable consequence. Further tweets like “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt” show that Trump is not done trying to affect the investigation.

This tweet also reveals a man without connection to reality. Again, at the Lester Holt interview, Trump took full responsibility for the firing of Comey, and before the DOJ recommendation.

HOLT: So, you had already made the decision.

TRUMP: Oh, I was going to fire regardless of recommendation.

So now he is lying again, trying to appear the victim.  There is a fitting irony that Trump’s tweets are both part of the offense with which he is charged and what is destroying his own legal defense. All Americans should look at this behavior and ask themselves: “If he can’t control himself under these circumstances, and isn’t smart enough to ask for help, then how can he possibly be an effective leader?”

The White House staff should be asking themselves whether they will continue to support the cover up. 40 White House staffers were indicted or received jail sentences for the Watergate scandal. Republicans took only a small hit to their credibility because they were aggressively supportive of the investigations and impeachment hearings. The Republican Congress members should now ask themselves how much damage are they willing to allow to their credibility. They should also ask themselves when country is more important than party.

William Casperson

editor

@Political Nation

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