Barr and Rosenstein likely made correct legal decision on obstruction

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.

The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

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In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.

The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”

Attorney General William Barr, along with Deputy Attorney General Rod RosensteinRod RosensteinHouse Democrats seeking Sessions's testimony in impeachment probe McCabe's counsel presses US attorney on whether grand jury decided not to indict US attorney recommends moving forward with charges against McCabe after DOJ rejects his appeal MORE, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

  • “the President was [not] involved in an underlying crime related to Russian election interference”;
  • he did not act “with corrupt intent”; and
  • there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

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The most recent pronouncement on obstruction from the Supreme Court was in a 2018 tax case called Marinello v. United States. There, the Supreme Court held, 7-2, that the government has to show “a nexus” between the defendant’s conduct and a particular proceeding and significantly, that the “proceeding was pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant.”

Notice the similarities with the AG’s summary, tracking this case. The seven-justice majority opinion, by Justice Stephen Breyer, also said that the government was wrong to argue that “corrupt intent” meant merely that the defendant acted with “specific intent to obtain an unlawful advantage.” Instead, a defendant must act “willfully” to obstruct an actual proceeding.

Justice Breyer rightly said that we should not “rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract statutory language.” To do otherwise, “places great power in the hands of the prosecutor” and “risks allowing policemen, prosecutors, and juries to pursue their personal predilections.”

Although just a tax case, the Supreme Court’s Marinello decision made pretty clear that it did not trust prosecutors with a broad reading of obstruction.

Marinello isn’t the only case in which the Supreme Court has narrowed an obstruction statute.

In the infamous Arthur Anderson case, it was 9-0 in favor of the defendant in an obstruction prosecution. There was a ton of evidence that the accounting firm had destroyed records, but it did so before the official SEC investigation into Enron. According to the court, “corrupt intent” was key: “Even persuading a person with intent to cause that person to withhold testimony or documents from the Government is not inherently malign.” Justice William Rehnquist also explained that the government had to prove “a nexus” between document destruction and “a particular proceeding.” There are those words “corrupt intent” and “nexus” again.

The Arthur Anderson court cited another obstruction case, Aguilar v. United States. In that case, Aguilar lied to an FBI agent and was found guilty of obstruction. Again, the Supreme Court found that an obstruction conviction had to show “a nexus” between “the obstructive act and the proceeding.”

The Supreme Court has made clear again and again that a defendant must act with corrupt intent and that there must be a nexus between any obstructive act and a pending or contemplated proceeding. It was no accident that the attorney general repeated these terms to justify his decision not to proceed with obstruction charges.

So for now, it looks like President TrumpDonald John TrumpHarris bashes Kavanaugh's 'sham' nomination process, calls for his impeachment after sexual misconduct allegation Celebrating 'Hispanic Heritage Month' in the Age of Trump Let's not play Charlie Brown to Iran's Lucy MORE is making a March run. Madness!

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.