Those who tout Trump’s ‘obstruction’ misrepresent the concept

Those who tout Trump’s ‘obstruction’ misrepresent the concept
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President TrumpDonald John TrumpShocking summit with Putin caps off Trump’s turbulent Europe trip GOP lambasts Trump over performance in Helsinki Trump stuns the world at Putin summit MORE’s opponents have repeatedly misrepresented the crime of obstruction of justice, conflating the colloquial meaning of “obstruction” with the legal concept. Such conflation is likely purposeful, to lay the groundwork for impeachment — political, not legal, arguments.

The colloquial definition of “obstruction” means to block, hinder or impede. The legal definition of “obstruction of justice,” however, is narrower, requiring proof of three elements: 1) the commission of a statutorily defined act; 2) undertaken with specific intent; 3) to hinder an “official proceeding.” The defendant must act with culpable mindset (called mens rea), and his act must actually obstruct, or attempt to obstruct, an official government proceeding.

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A simple hypothetical illustrates this point: Imagine Bob shreds a bunch of documents. If there’s no pending or reasonably foreseeable government “proceeding” — such as a grand jury, criminal trial or congressional investigation — to which Bob’s documents may be relevant, the act of shredding them isn’t obstruction of justice. Even if there is a government proceeding, Bob doesn’t “obstruct justice” unless he shreds with the intent to impede that proceeding.

 

New York Times reporters recently misrepresented obstruction when they examined a memo sent to special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE, in which Trump’s lawyers outlined why accusing the president of obstruction is a waste of time. Beyond the strong constitutional argument that the president cannot obstruct justice when exercising his constitutional authority to fire a subordinate FBI director, Trump’s lawyers also asserted that his acts do not fall within any obstruction statute. The newspaper characterized this argument as a “technical parsing” of the law. This is what lawyers and judges do: We parse statutes to determine if they’re applicable.  

One statutory argument Trump’s lawyers made is similar to one I made last year. When the president told then-FBI director James ComeyJames Brien ComeyComey: 'Patriots need to stand up and reject' Trump's behavior Swalwell: Trump delaying end of Russia probe with refusal to testify Why does Congress keep playing political games on FBI oversight? MORE that former national security adviser Michael Flynn was “a good guy” and “I hope you can let this go,” it was not obstruction because

an FBI investigation isn’t an “official proceeding.” The New York Times snarkily dismissed this defense, asserting that it’s based “on an outdated statute, without mentioning that Congress passed a broader law in 2002 that makes it a crime to obstruct proceedings that have not yet started.”

The obstruction statutes found in 18 U.S.C. 1505 and 1510 are not “outdated.” There are multiple federal obstruction statutes, each with a purpose; all require proof of the elements mentioned above, including the “broader” statute cited by the reporters — Section 1512.

The reporters relied on subsection (f), which declares that “an official proceeding need not be pending or about to be instituted at the time of the offense.” But this subsection does not dispense with the “official proceeding” requirement of obstruction law. It states that there must be a proceeding that the defendant aimed to obstruct, even if the proceeding was not yet initiated when the defendant acted.

The Supreme Court’s decision a few months ago in Marinello v. United States reaffirmed the importance of a nexus between the defendant’s actions and his intent to interfere with an official proceeding. The court insisted that the government prove an intent to obstruct an official proceeding, and said the proceeding must at least be in the offing at the time the defendant acted.  This is logical; without an “official proceeding” requirement, obstruction laws would be breathtakingly broad.

The obstruction statute cited as the biggest threat to President Trump — Section 1512 of Title 18 — defines four acts as obstruction, all of which must satisfy intent to impede an “official proceeding.” Three of the subsections — (a), (b) and (d) — are moored to overtly violent or coercive acts, such as murder, that are obviously inapplicable to President Trump.

Some argue that Trump’s actions violate subsection (b) — which addresses acts of intimidation, threats, or misleading conduct — because he “threatened” Comey. But Trump’s remarks cannot constitute a threat or intimidation punishable consistent with the First Amendment. In Virginia v. Black (2003), the Supreme Court concluded that the First Amendment permits criminalization only of “true threats,” defined as “a serious expression of an intent to commit an act of unlawful violence.”

Others insist that subsection (c) of 1512 provides a basis for claiming Trump obstructed justice. This subsection defines obstruction as the alteration or concealment of documents and other objects used in an “official proceeding,” and any other act that obstructs, influences or impedes a  proceeding. But Congress imposed higher culpability (mens rea) under subsection (c), requiring proof that the defendant acted “corruptly.”

In the obstruction case of Arthur Andersen v. United States (2005), the Supreme Court stated a “corrupt” mindset means “wrongful, immoral, depraved, or evil.” A defendant must know he is likely interfering with an official proceeding and must have the specific, evil desire to do so. There is no evidence that President Trump did this.

In fact, nothing President Trump did impeded an “official proceeding,” which the law defines as a federal court or grand jury, Congress, a federal agency, or an insurance regulatory agency. The U.S. Court of Appeals for the 9th Circuit recently ruled in United States v. Ermoian that an FBI investigation is not a proceeding before a federal agency within the meaning of the statute.  

But what about the Flynn grand jury? Expressing hope that Comey would “let Flynn go” could not, by definition, obstruct a federal court or grand jury proceeding. First, there is no evidence that a grand jury was in the offing at the time the president spoke to Comey. Grand juries are secret and Flynn told the White House that the FBI had cleared him. Moreover, on Jan. 27, 2017, Acting Attorney General Sally YatesSally Caroline YatesSupreme Court hands Trump predictable win on travel ban IG report doesn’t fault Comey for ‘partisanship,’ but it should have for his incompetence Overnight Health Care — Sponsored by PCMA — Health chief grilled on Trump drug pricing plan, ObamaCare case MORE refused to confirm any investigation to White House counsel.

More fundamentally, Trump’s comments to Comey could not affect a grand jury. The FBI  investigates and forwards findings to the Department of Justice, which has sole discretion to initiate prosecutions, including empanelling grand juries. Expressing hope that Comey would let Flynn go could no more obstruct the Flynn grand jury than telling the secretary of agriculture.

It’s time to stop the nonsense. Stretching and contorting obstruction law in a desperate attempt to justify impeachment is a political ploy, not a serious legal argument.

Elizabeth Price Foley practices constitutional law in Washington, D.C. and is a professor of constitutional law at Florida International University College of Law in Miami, Florida.