Thorny part of obstruction of justice is proving intent, that's a job for Congress

Thorny part of obstruction of justice is proving intent, that's a job for Congress
© Greg Nash

The public conversation post-“Mueller Report bombshell” is not about collusion, but about obstruction of justice. Attorney General William BarrWilliam Pelham BarrDemocrats rip Barr over IG statement: 'Mouthpiece' for Trump Comey in op-ed after IG report: 'Barr needs to stop acting like a Trump spokesperson' Graham: FBI investigation in 2016 turned into a 'criminal conspiracy' MORE concluded in his four-page summary that President TrumpDonald John TrumpLawmakers release defense bill with parental leave-for-Space-Force deal House Democrats expected to unveil articles of impeachment Tuesday Houston police chief excoriates McConnell, Cornyn and Cruz on gun violence MORE did not obstruct justice. Special Counsel Robert Mueller’s conclusions pointed in exactly the opposite direction.

We now have dueling prosecutors reaching conflicting decisions about whether the person in the post powerful office in the world committed that crime. Unlike “collusion,” obstruction of justice is a legal term of art. Lay people want to know: Did the president obstruct justice or didn’t he?

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(This is not to say that the collusion issue isn’t epically serious. It is. The Russians indisputably attacked the American electoral system, duping many U.S. voters in the process — and Team Trump was happy to accept the Russians’ help.)

Let’s get a few things straight about obstruction, because it’s not an issue that will — or should — go away when it comes to Trump.

1. Neither Barr nor Mueller are judges or legislators. Their job is to decide whether to bring charges — and let someone else decide whether a person is guilty of a crime. Mueller unambiguously handed the obstruction-of-justice baton to Congress. 

First, a quick review of basic civics. Congress passes laws, the executive branch investigates and prosecutes potential violators of those laws, and judges or juries decide definitively whether a person actually committed a violation of those laws.

Arguably, Barr stepped outside his prosecutorial role in definitively concluding that “the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.” Under our system of separated powers, for those persons who can be removed from office by impeachment under the Constitution, the “jury” entrusted with making that determination is the Senate. The House of Representatives must first issues articles of impeachment. Essentially, articles of impeachment are an indictment by Congress instead of by a prosecutor.

Handing off the obstruction baton to Congress makes sense historically. Richard Nixon’s articles of impeachment included “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees.” 

For Bill ClintonWilliam (Bill) Jefferson ClintonChris Wallace: Allegations against Trump 'far broader than the Clinton impeachment' DOJ argues Congress can't take non-legislative steps against Trump on emoluments White House spokesperson: Pelosi, Democrats 'hate Trump's success' MORE, articles of impeachment charged him with having “obstructed and impeded the administration of justice, and . . . to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him in a duly instituted judicial proceeding.”

Obstruction doesn’t care what political party a president hails from.

2. The crime is obstruction of justice — not “obstruction of crime.” In other words, the law doesn’t require prosecutors to show that the alleged “obstructer” did the bad deed of interfering with an investigation because he wanted to cover up some other crime. If you bully a witness because you hate the prosecutor and want to make her working life a living hell out of spite, that counts.

Mueller himself explains that “obstruction-of-justice law reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.”  In other words, “the verbs obstruct or impede are broad and can refer to anything that blocks, makes difficult, or hinders.”

As a matter of law, Trump need not be guilty of criminally conspiring with the Russians in order to be guilty of obstruction. His attempts to stymie Mueller’s probe can constitute obstruction of justice regardless of conspiracy or “collusion.”

Here are a few highlights from the Mueller report’s account of Trump’s bad deeds: 

  • Trump told his White House counsel, Don McGahn, to fire the person in charge of the investigation, Firing the top prosecutor on an investigation is a form of interference, to say the least. 
  • In Mueller’s words, Trump engaged in “multiple” additional acts “that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” They ranged from efforts “to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”

Even to the untrained ear, this laundry list sounds a lot like endeavoring to obstruct an investigation. It doesn’t take a lawyer to conclude that the natural effect of these types of acts — if successful — would be to impede an investigation. (The acts need not succeed for there to be obstruction, mind you.)

3. The thorny part of obstruction of justice is proving intent — that is, that the person doing the obstruction did it with the objective interfering with an investigation. If you rear-end a juror by mistake on her way to a high-profile criminal trial, rendering her inescapably late, you are not susceptible to an obstruction charge. If you do it on purpose, you could be in trouble under the criminal laws.

Mueller indicated in his report that intent wasn’t a toughie when it comes to Trump. That’s why he didn’t push to interview him — his team decided they had enough evidence to show the intent element of obstruction. 

Mueller makes a point that Trump’s efforts to obstruct the Russia investigation took a turn soon after he fired FBI Director James ComeyJames Brien ComeyComey in op-ed after IG report: 'Barr needs to stop acting like a Trump spokesperson' Comey says 'Fox & Friends' canceled booking after release of watchdog report on Trump probe Fox's Chris Wallace: IG report headline is 'It didn't find the things that Bill Barr and Donald Trump alleged' MORE, when Trump “became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct.” This is when Trump started to “launch public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation.”

That sure sounds like obstruction of justice, folks. 

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Playing devil’s advocate, though, let’s consider Barr’s explanation concluding there was no obstruction of justice. What about the president’s frustration with the whole thing, and his belief that the Mueller probe was politically motivated? What about all the helpful things the White House did to cooperate, like turning over documents?

Mueller deals with this stuff too, which doesn’t go to whether there is enough evidence to charge Trump if he weren’t president, and thus chargeable. It goes to Trump’s potential defenses at trial. The fact that a good defense lawyer like Barr can come up with some other explanation for Trump’s obstructive conduct does not undo the bare facts of obstruction. And because Mueller couldn’t bring Trump to trial under Department of Justice policy, he didn’t do what Barr did and come to an ultimate conclusion on obstruction.

That’s a job for juries, not prosecutors. In Trump’s case, it’s for Congress, via impeachment.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, How to Read the Constitution and—Why, will be published in June. Follow her on Twitter @kim_wehle.