Obstruction of Justice: What Does it Mean for President Trump?

Irony hits even the most powerful among us. After spending months trying to persuade Director Comey to tell the public that he wasn’t personally under investigation, Donald Trump wakes up on his birthday to find that he is being investigated by Special Counsel Mueller for obstruction of justice. Since obstruction is the same crime that undid President Nixon and almost brought down President Clinton, Mr. Trump finds himself in hostile legal waters. What exactly is obstruction of justice? Is there another evidence for the investigation that Special Counsel Mueller is committing? And is there enough evidence for impeachment?

What Is Obstruction of Justice?

Congress has defined obstruction of justice under Title 18 Section 1519 of the U.S. Code as:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

To obtain a conviction, prosecutors must prove beyond a reasonable doubt that the defendant committed the act and that the defendant intended to commit the act. For instance, if a defendant killed someone with a car but didn’t intend to, then the defendant can’t be guilty of murder since one element, intent, is missing. Similarly, a defendant who intended to kill someone with his car, but didn’t actually kill the person, cannot be guilty of murder because the act of murder was not committed (although attempted murder or assault would be easier to prove in that instance).

To be sure, the key here would be intent. Since we are dealing with the Presidency here, many of the actions Trump could take to obstruct the investigation would usually be legal. Normally, a President has the power to decide which types of cases the Justice Department should prosecute or fire an FBI Director. Therefore, any investigation regarding obstruction would need to focus on intent. Checking abuse of power is not about whether the power was used, but whether the power was used for improper goals. If Trump fired Director Comey because he truly believed that was best for the nation, then it would not be obstruction. On the other hand, if Trump fired Directory Comey because he didn’t want to see Flynn imprisoned, then it would be obstruction unless the President could explain why preventing Flynn from being prosecuted was in the best interests of the nation.

Establishing intent is always a challenge for prosecutors, as intent deals with what a defendant is thinking rather than what a defendant is doing. Obviously, if there is a “smoking gun” like the Nixon tapes, then proving intent would be a lot easier. However, the law doesn’t always require a smoking gun. If the facts and circumstances of a case suggest a pattern and practice of corrupt intent, that may be enough to tip the balance. Republicans would be wise to avoid examining specific verbiage such as “I hope you can let this go” and focus on the overall picture forming – whether the President has a pattern of removing people who ask too many questions about the Russian investigation and the Trump campaign.

Is There Enough Evidence For An Investigation?

The standard for a criminal conviction is “beyond a reasonable doubt.” However, if we’re asking whether there is enough evidence for an investigation to ensure we’re not just perpetuating “a witch hunt,” the standard would likely be probable cause. For example, a police officer only needs probable cause to pull a car over. Only after the officer arrests the driver and the prosecutor charges the driver with a DUI will the “beyond a reasonable doubt” standard be applied.

With all the talking points about “fake news,” it’s important to create a base line of facts that reasonable people can agree on. After determining which facts are 100% true, we can determine whether they warrant an investigation. So far, the agreed upon timeline appears to be:

• February 13, 2017: Flynn resigns as National Security Advisor amid reports that he had misled the Vice President about his contacts with Russia officials.
• March 2, 2017: Attorney General Sessions recuses himself from Russia Investigation.
• March 20, 2017: Comey confirms to Congress and the public that the FBI is investigating any potential ties between the Trump Campaign and Russia’s efforts to intervene in the 2016 Presidential elections.
• May 9, 2017: The President fires Director Comey.
• May 9, 2017: The termination letter states that the Director has been terminated at the recommendation of the Attorney General and Deputy Attorney General.
• May 10, 2017: President states that he fired the Director because “he wasn’t doing a good job.”
• May 11, 2017: The President gives an interview during which he states that “regardless of recommendation, I would have fired him.” The President also stated during that interview “”When I decided to [fire Comey], I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story.”
• May 12, 2017: The President tweets “”James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
• May 17, 2017: Deputy Attorney General appoints Robert Mueller as Special Counsel.
• June 8, 2017:James Comey testifies before Congress regarding the President’s efforts to persuade him to drop the investigation into Michael Flynn. Comey confirms he told the President that he was not personally under investigation at that time.
• June 13, 2017: Trump friend, Christopher Ruddy, CEO of Newsmax Media, claims the President is considering firing the Special Counselor.
• June 14, 2017: Washington Post reports that Mueller is investigating the President for obstruction of justice.

This is a long chain of events, so let’s parse through it. Prosecutors, i.e. Mueller and his team, would be looking to fit these events with the two elements for obstruction, the act of impending the investigation, and the intent to do so. In this list, terminating Comey, the tweet about releasing tapes should Comey “leak to the press,” and threatening to terminate Mueller might be considered acts of obstruction. Removing the leading investigators could derail the investigation, although White House Spokeswoman Sanders claims the investigation would continue even after Comey left.

The White House would argue that these actions, terminating an FBI Director and considering the termination of a Special Counselor, are completely legal actions. However, while the actions might normally be legitimate, case law does state that if otherwise legal actions are done for corrupt reasons, then those otherwise legal actions would themselves become illegal. For example, if a prosecutor brings charges against a political opponent and a court later finds that the prosecutor acted based on politics, not law, then the action would become illegitimate, even though it is normally a prosecutor’s job to bring charges.

This idea can also be found in employment law; an employer can fire an employee for any reason, except for illegal ones, such as racial discrimination. Looking through the justifications that the White House gave for firing James Comey, it is very likely that the President gave a bunch of pretexts to mask the fact that he terminated the FBI Director for not dropping the investigation into Michael Flynn.

Of course, it is also possible that Trump had other motivations for firing Comey. Perhaps all Trump wanted was for Comey to announce that the President was not personally under investigation. Or maybe Trump really wanted Comey to say he was “loyal” and not just “honest.” We don’t really know, but if there is a potential for improper and illegal intentions, then its worthy of investigation. If the investigation cannot eliminate these foolish-but-not-illegal intentions, then the investigation will likely be a bust. But if the investigation has evidence to show that the illegal intention was the actual cause of these terminations, then the case would move to Congress to consider impeachment.