Trump obstructed justice and Mueller can prove it
Donald Trump’s former lawyer, Michael Cohen, says the President ordered him to violate federal campaign finance laws during the 2016 election. As bad as that news is for Trump, his real legal peril is even more dire.
We’ve studied the investigation that special counsel Robert Mueller is pursuing, and the publicly available information offers substantial evidence that Trump has obstructed justice. Mueller and his team are surely reaching the same conclusion as their obstruction investigation reportedly approaches its conclusion, which means it is highly likely that Mueller will refer an obstruction case to Congress for further action.
He could also seek to indict co-conspirators — and he could name the President himself in an indictment. No wonder that the President has resisted an interview with the special counsel. That is even less likely to happen after the Cohen plea, not to mention the virtually simultaneous conviction of Paul Manafort won by Mueller and his team on Tuesday afternoon.
There is, of course, a difference between what is in the public record about obstruction and what Mueller and his colleagues have uncovered in their investigation. They surely have much more information, and Cohen’s lawyer has suggested that he also has things to say about the alleged involvement by Trump and his campaign in collusion with Russia. But even without subpoena power, it is easy to discern significant evidence supporting the elements of obstruction of justice — an obstructive act undertaken with corrupt intent and having a connection to a Grand Jury or congressional proceeding.
Public reports, open court testimony and our near-century of collective criminal law experience allow us to forecast what the Mueller report will likely contain. We analyse the President’s pattern of obstructive conduct, potential liability and likely consequences in our updated Brookings Report released yesterday, Presidential Obstruction of Justice: The Case of Donald J. Trump.
We begin with the President’s demand of loyalty last year from former FBI Director James Comey, his request that Comey “see [his] way clear” to letting National Security Adviser Michael Flynn go, his termination of Comey and his other statements. That is very similar to conduct that has previously supported federal obstruction charges and convictions.
Since the first edition of our paper was published, it has been reported that Trump attempted to block Attorney-General Jeff Sessions from recusing himself from the Russia investigation despite his clear legal duty to recuse; asked Sessions to reverse his recusal decision; twice ordered the firing of Mueller, although he didn’t follow through; dictated a false account for a key witness, his son Donald Trump Jr, of the June 9, 2016 Trump Tower meeting between campaign and Russian representatives; and repeatedly and publicly attacked Mueller and key witnesses to the obstruction case. Trump has also continued disputing the underlying Russian attack and Vladimir Putin’s role in it despite possessing evidence to the contrary.
This is powerful evidence of obstruction of justice under the ordinary application of the relevant criminal statutes. As a result, Mueller will likely conclude that Trump’s actions potentially constituted obstruction under one or more different theories, each of which would be a crime:
• Apparent attempts to influence, impede or obstruct actual or foreseeable congressional and Grand Jury proceedings
• Trump’s misleading conduct or attempts to threaten, intimidate and corruptly persuade witnesses
• Trump’s potential co-ordination or conspiracy with other individuals to obstruct justice
Just last week, we saw a very clear and public example of potential witness intimidation. Trump stripped the security clearance of former CIA director John Brennan and admitted to journalists that he did so because Brennan was among those whom the President held responsible for the Russia investigation. White House press secretary Sarah Huckabee Sanders publicly listed nine other people related to the investigation whose security clearance were under review — Comey, James Clapper Jr, Michael Hayden, Andrew McCabe, Bruce Ohr, Lisa Page, Peter Strzok, Susan Rice and Sally Yates — and further reporting indicates that orders have already been drawn up to strip a number of them of their clearance.
All of these individuals are potential witnesses in the election interference or obstruction investigations, or both. On Twitter this week, Trump threatened to take security clearances away from Clapper and former CIA and FBI official Philip Mudd.
Such retaliatory exercises of executive power against witnesses are potential indicators of witness tampering — that is, attempts to threaten or intimidate. Courts have routinely held that even suggestively threatening statements are sufficient to bring a case under the witness intimidation statute. Evidence showing the corrupt intent necessary for criminal liability would have to be further developed, but Trump’s comments that “these people led” the Russia investigation — the “rigged witch-hunt” — may support such a finding. These retaliatory actions, together with the President’s comments, may also provide further evidence of corrupt intent.
Trump’s legal team and others have advanced weak defences that are unlikely to be given much credence in Mueller report. That a president may have exercised his constitutional authority, such as to remove subordinate officers, is no defence if those otherwise lawful actions were done with a corrupt intent to obstruct a criminal or congressional proceeding. The notion that a public official cannot be charged with obstructing justice for actions that are within their public authority finds no support in the annals of American law. Just as officials can be charged with bribery if they take money for official actions that would otherwise be completely proper, they can be charged with obstruction if they take otherwise proper actions to corruptly impede an investigation.
If Mueller determines that Trump obstructed justice, he may follow the lead of past special prosecutors who have deferred to Congress’s primary jurisdiction over matters involving the President and have referred such matters to the House Judiciary Committee. The investigations involving Richard Nixon and Bill Clinton serve as important precedent for this option.
But deference to Congress’s primary jurisdiction does not mean that the criminal justice system has no role to play in the obstruction case. Other White House officials may have been involved in the President’s pattern of obstruction. Last weekend, The New York Times reported that White House Counsel Donald McGahn was so afraid of getting tangled up in liability that he bent over backwards to co-operate with Mueller. Indicting White House officials on conspiracy charges would be entirely appropriate if the facts bear out such a claim. That is true even if the case against the President has been referred to Congress. The President could be named as an unindicted co-conspirator in that event.
Should Congress not take up the obstruction case against the President after such a referral, the special counsel may also leave open the possibility of indicting him at a later time.
Trump has so far resisted an interview with Mueller despite months of negotiations. It does not appear likely that he will grant one. Mueller may seek to compel his testimony via a Grand Jury subpoena or he may simply file his report. In either event, it is increasingly clear that if the evidence is as strong as it seems, there will be multiple avenues for seeking accountability — let alone whatever evidence Mueller has that we are not yet privy to. All of the technical defences the President’s legal team can stand up will not prevent the truth from coming out.
• Barry Berke is co-chairman of the litigation department at Kramer Levin Naftalis and Frankel, where he is a partner specialising in white-collar criminal defence. Noah Bookbinder is executive director of Citizens for Responsibility and Ethics in Washington and a former federal corruption prosecutor. Norman Eisen is a senior fellow at the Brookings Institution, chairman of Citizens for Responsibility and Ethics in Washington, a former US ambassador to the Czech Republic and author of The Last Palace: Europe’s Turbulent Century in Five Lives and One Legendary House
Louis Somner (1959-2018)
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