Trump lashes ‘obstruction of justice’ claims

US President Donald Trump has lashed out in against allegations circulating today that he is now under investigation by Special Counsel Robert Mueller for obstruction of justice.

Donald J. Trump on Twitter: “They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice / Twitter”

They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice

Not for the first time President Trump is absolutely right.  As I have repeatedly pointed out, 10 months of investigation have discovered no evidence of collusion between anyone in Donald Trump’s campaign team and Russia, and following former FBI Director Comey’s testimony to the Senate Judiciary Committee it is now known that the US intelligence services accept that Russian meddling in the US election – if it even took place – had no effect on the outcome of the election and that President Trump himself is not under investigation for colluding during the election with the Russians.

In light of all this, in any rational world everyone should see that there is no substance to this scandal, leading to this pointless investigation being closed down.

However, as has been very obvious for a very long time, the real purpose of those people driving this scandal is not to uncover collusion between the Trump campaign and the Russians.  Apart from a few paranoid people I doubt by now that anyone in authority any longer believes that such collusion took place.

Instead the purpose behind the scandal is (1) to embarrass Donald Trump and ideally engineer his removal from office; and (2) to prevent any move towards a rapprochement between the US and Russia, even though that is the policy Donald Trump advocated in the election, and which he won the election on.

To that end – since there is a limit to how far an investigation into claims of collusion between the Trump campaign and the Russians can be taken when there is no substance behind them – the focus has now shifted to the only very marginally more substantive issue of obstruction of justice.

I say “only very marginally more substantive issue of obstruction of justice”, because as I have said though President Trump’s conversations with Comey were extremely unwise, they do not amount to an obstruction of justice.

That is not just my view. Here is what Professor Jonathan Turley of George Washington University has to say about this issue

The desire for some indictable or impeachable offense by President Trump has distorted the legal analysis to an alarming degree. Analysts seem far too thrilled by the possibility of a crime by Trump. The legal fact is that Comey’s testimony does not establish a prima facie — or even a strong — case for obstruction.

It is certainly true that if Trump made these comments, his conduct is wildly inappropriate. However, talking like Tony Soprano does not make you Tony Soprano. Trump is not the first president to express dissatisfaction with an investigation by the Justice Department. Former president Bill Clinton made clear his own dissatisfaction with the investigations of his administration under then-Attorney General Janet Reno. It is no surprise that Trump wanted to see these investigations end. Indeed, he had a virtual hashtag to that effect.

The crime of obstruction of justice has not been defined as broadly as suggested by commentators. While there are a couple of courts with more expansive interpretations, the crime is generally linked to obstructing a pending proceeding as opposed to an investigation. Most courts have rejected the application of obstruction provisions to mere investigations. The manual used by federal prosecutors makes that same distinction. Even if a prosecutor was able to extend the definition of obstruction, there would remain the need to show that Trump sought to “corruptly” influence the investigation. Trump telling Comey that Michael Flynn is “a good guy,” and that he hoped Comey would let the matter drop is hardly a “cancer,” let alone a crime, growing on the presidency.

Flynn had just resigned the day before Trump allegedly asked Comey whether he could now drop the investigation of Flynn. Trump had been told by Comey that he is not under investigation (three alleged confirmations by Comey that are equally inappropriate). Trump could say he felt Flynn had suffered enough. For a defense lawyer, a charge of obstruction on these facts would be a target-rich environment.

The mere fact that Trump asked to speak to Comey alone would not implicate the president in obstruction. Trump could argue that he sought to exclude Attorney General Jeff Sessions and others who were facing calls for recusal in the investigation. He could claim that he viewed this as a personal inquiry on behalf of a friend. He was, of course, wrong. Dead wrong in asking such a grossly improper question. However, to treat the desire of a private conversation as inescapable evidence of obstruction is to deny the obvious defenses in the case.

 In the end, a prosecutor should never seek to indict a president absent a lead-pipe cinch of a case. This is no lead-pipe cinch. Of course, there is also the problem of actually indicting a sitting president if there was a crime and evidence to fit it. Many academics believe that a sitting president cannot be indicted. It remains an open question. After all, judges have faced indictment before impeachments. Yet, the president remains the head of the executive branch handling such prosecutions.

The proper course is for a president to be impeached and removed before any prosecution. It is no gift to a president. Impeachments are not subject to the rules of evidence or even the criminal code. Presidents can face a much broader array of evidentiary demands with far less protection under due process rules. A president can also be impeached for acts that are not technically crimes. Abuse of office is a classic example. However, analogies to Watergate show little understanding of those articles of impeachment. The first article against President Nixon was an obstruction allegation, but it was expressly linked to actual and serious crimes, including the criminal break-in at the Watergate. The article specifically listed an array of personal actions taken by Nixon and his subordinates to procure false statements, obstruct investigators, and “to conceal the existence and scope of other unlawful covert activities.”

Ironically, those who want a criminal charge on this record are committing the very offense that they accuse Trump of committing: disregarding the law to achieve their desired goal. It would be a highly dangerous interpretation to allow obstruction charges at this stage. If prosecutors can charge people at the investigation stage of cases, a wide array of comments or conduct could be criminalized. It is quite common to have such issues arise early in criminal cases. Courts have limited the crime precisely to avoid this type of open-ended crime where prosecutors could threaten potential witnesses with charges unless they cooperated.

We do not indict or impeach people for being boorish or clueless … or simply being Donald Trump.

To which I would add a point which ought to be obvious, and which I have made repeatedly, and which President Trump alludes to in his latest tweet, which is that for any obstruction of justice charge to stick there has to be some evidence of the actual existence of a crime the prosecution or investigation of which is being obstructed.

No such crime has been identified in the Russiagate case – almost certainly because no such crime was ever committed – whilst in the case of the Flynn investigation – which is the one that President Trump is actually being accused of obstructing – 6 months after the investigation was launched and 4 months after President Trump’s now famous conversation with Comey no charges have been brought against Flynn even though the whole case against Flynn stems from a single telephone conversation he had with Russian ambassador Kislyak of which a complete transcript exists.

As it happens I am far from sure that Special Counsel Mueller actually is investigating President Trump for obstruction of justice.  The Washington Post article that launched this claim looks to me to be based on a deduction that Mueller is investigating Trump for obstruction of justice because Mueller’s investigators intend to interview Director of National Intelligence Daniel Coats, Mike Rogers, the head of the National Security Agency, and Rogers’s recently departed deputy, Richard Ledgett.

It seems to me that these are people whom Mueller would want interviewed anyway as part of the original Russiagate investigation, and I think it is going too far to assume that simply because his investigators are going to interview them that means Mueller’s investigation has been expanded to look into allegations of obstruction of justice.

The Washington Post story is sourced to our old friends “five people briefed on the interview requests, speaking on the condition of anonymity because they were not authorized to discuss the matter publicly”.

Comey’s testimony to the Senate Judiciary Committee made it clear that information provided by these sort of anonymous sources is not always reliable (to put it mildly) and that he disputes a now notorious New York Times article, which appeared on 14th February 2017 (the same day incidentally that Trump had his now famous conversation with Comey in which they supposedly discussed Flynn).  That article was also sourced to our old friends the anonymous sources (“four current and former American officials”) and contained the sensational claim that

Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election

Interestingly but unsurprisingly, despite Comey saying publicly and on oath that he disputes the New York Times story, the New York Times continues to stand by the story, preferring what it says it was told by its anonymous sources to what Comey says publicly on oath.

President Trump has tweeted his doubts about whether some of these anonymous sources actually exist and have not simply been made up, and frankly I am starting to have my doubts as well.  The episodes of the latest Washington Post story and of the New York Times article of 14th February 2017 reinforces those doubts

Donald J. Trump on Twitter: “….it is very possible that those sources don’t exist but are made up by fake news writers. #FakeNews is the enemy! / Twitter”

it is very possible that those sources don’t exist but are made up by fake news writers. #FakeNews is the enemy!

If Special Counsel Mueller really is investigating the President for obstruction of justice then the President ultimately has no one to blame but himself.  His meetings with Comey were as I have repeatedly said extraordinarily unwise, and though there is no legal case for obstruction of justice on the known facts (which I am sure are all the facts there are) there is at least an appearance of impopriety which Mueller may feel he has no choice but to look into.

Having said this, in the absence of any actual legal case for obstruction of justice I cannot imagine that Mueller’s investigation will in the end do the President any real harm.  Ultimately it may even be in the President’s interests to have Mueller look into this issue.  If Mueller exonerates the President fully of this charge – as on the facts he is bound to do – then it is impossible to see how any impeachment based on this charge can get off the ground.

In the meantime the President is showing wisdom by having his officials in the White House refer questions about this matter to Marc Kasowitz, his lawyer.  I hope he continues to exercise the same restraint in what is now a legal case.