Obstruction of justice is a crime of intent. To be precise, of Corrupt Intent, which is a term serious people find elusive. Special Counsel Robert Mueller has just asked Donald Trump to come forth and say more about Obstruction.
The omnibus US code provision on Obstruction (there is more than one) is 18 U.S. Code § 1503:
(a) Whoever … corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).
Here is Trump’s tweet (reportedly after his lawyers briefed him!) on Day 2 (August 1, 2018) of Paul Manafort’s Federal trial on 18 counts of tax fraud and bank fraud:
..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!
Trump’s “this” began 19 months ago when he urged then-FBI Director James Comey to back off investigating Michael Flynn. Two days after he finally fired Comey on May 9, 2017, Trump explained it to NBC’s Lester Holt:
I was going to fire Comey. … I was going to fire Comey regardless of [Deputy AG Rod J. Rosenstein’s] recommendation ...
He made, he made a recommendation, he’s highly respected, very good guy, very smart guy, uh, Democrats like him, the Republicans like him, uh, he made a recommendation but regardless of recommendation, I was going to fire Comey knowing, there was no good time to do it. 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 Democrats for having lost an election they should have won ...
(Later in that interview Trump says he wants to know “if there was any problem with an election having to do with Russia” and “it’s a horrible thing and I want to get to the bottom of it and be sure it will never ever happen” and “I said to myself, I might even lengthen out the investigation ...” As I read those comments, Trump thereby narrows the issue to “this Russia thing with Trump”.)
Jennifer Rubin at The Washington Post detects Obstruction:
Now that an actual trial is underway, multiple indictments have been obtained and plea deals have been struck, there is no question that Trump is seeking to shut down a set of active, valid cases. No longer do we need to debate whether interfering with an FBI investigation can be obstruction; we now have the president of the United States trying to shut down the trial (one of two) of his former campaign chairman. If Mueller cannot make out an obstruction claim now, I’d be very surprised.
But, but, but … a host of commentators, former FBI and DoJ officials, ex-prosecutors and law pundits waffle, even on MSNBC! As in, It’s a “facts and circumstances” kind of issue. And, It’s up to the Federal prosecutors to find Corrupt Intent. Reporter Rubin quotes Laurence H. Tribe, pre-eminent Harvard Law constitutional scholar, cautioning that “what Trump has said about Sessions isn’t equivalent to telling the attorney general ‘You’re fired unless you direct your deputy [to] discharge Mueller by close of business today.’” OK, it might not be “equivalent”, but the intent seems clear. Doesn’t it?
What are these experts looking for, but not seeing clearly enough? If obstruction is obvious on the face of Trump’s declarations but Corrupt Intent is not as obvious, what the heck is Corrupt Intent anyway? Let’s see, collectively, if we can help them.
Courts use pattern jury instructions, samples adaptable to the circumstances of a particular case but helpful on the points of law and evidentiary proof. Here’s one from the Federal Tenth Circuit on Obstructing the Administration of Justice in a pending judicial proceeding (2.62):
This law makes it a crime for anyone corruptly to [influence] [obstruct] [impede] [endeavor to [influence] [obstruct] [impede]] the due administration of justice in connection with a pending judicial proceeding.
To find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: ...
Third: the defendant's act was done "corruptly," that is, that the defendant acted knowingly and dishonestly, with the specific intent to subvert or undermine the due administration of justice. (bolding added)
“Knowingly” seems clear. There is no doubt that Donald Trump acted knowingly in making the statements he made. But ...
Does Donald Trump have to know he’s being dishonest? How much does Mueller have to prove about what Trump intended, what he “knew”? Or, in the context of a business case alleging obstruction in the shredding of audit documents), is the defendant conscious of wrongdoing rather than just of achieving a questionable result? Or, in the words of that jury instruction, did Donald Trump have “the specific intent to subvert or undermine the due administration of justice”?
Let’s say — strictly hypothetically, of course — that Donald John Trump, aka the president, appears before Mueller in an interview or in a Grand Jury room (take your pick) and says something like:
(1) As Commander-in-Chief, I am the head of everything including law enforcement. I can fire James Comey. I can see to the firing of Robert Mueller and his team. Those are employments “at will” so I can do what I want — no cause needed, any cause accepted, no explanation necessary.
(2) In this case, I honestly believe Russia and Trump is a made up story. The FBI and DoJ are conducting partisan witch hunt(s) which have no genuine basis. Their activities stain the reputation of many good people (me included) and constitute a danger to our system of justice and democracy.
(3) There are those who don’t want me to say this, but I must. The national interest requires that we stop this kind of thing before it undermines us even more. Sad!
OK, that puts it plainly, hypothetically speaking.
Let’s assume Trump knows the law, that he listened to his lawyers and absorbed their advice (right or wrong). Further, assume that Trump said this knowing he would commit a felony if he lied to a Grand Jury or in an interview with Federal law enforcement officers. As for Trump lawyer Rudy Giuliani, let’s ignore somemuch all of what Rudy has said because that would give us far too many rabbits to chase.
One key matter that many of us regard as compelling is that Robert Mueller has declared Trump to be a subject but not a target of his investigation. We can be sure that Trump’s family members, friends and associates are, too. Is this self-interest enough to deprive the president of his power to hire and fire at will and to direct the conduct of law enforcement investigations? I.e. At law, do we accept his saying that his intent in squelching any such investigation was an honest intent? Laurie Levinson, former prosecutor and law prof at Loyola University concluded, “Donald Trump might be one of the few people who could get away with saying, ‘I was just clueless.’”
And, of course, the core issue is the Russian investigation. There is overriding public interest to understand whether, how and with whom Russian actors conspired — or coordinated if you will; the term “collusion” seems passe´ — to influence the election of 2016, which is prohibited by Federal law. And when involvement is charged, all participants should be prosecuted. Does this write OBSTRUCTION so large that once investigations, Grand Jury cases and indictments are begun, no one can close them down, not even the president?
Is Corrupt Intent apparent? If so, why are many well-regarded experts still hedging? If not, what will it take to prove it?
What say you, counselors of Daily Kos?
