The House Judiciary Committee’s faux impeachment hearing on Tuesday was an exercise in legal obfuscation about obstruction.
It is a curious exercise, because the House does not need a criminal obstruction offense in order to impeach the president. But it is a telling exercise, too: Democrats are pretending they have an actual crime, just as they are pretending to engage in an actual impeachment inquiry. Acknowledging the absence of a crime would demonstrate that Chairman Jerry NadlerJerrold (Jerry) Lewis NadlerBiden to raise refugee cap to 125,000 in October Ocasio-Cortez, Bush push to add expanded unemployment in .5T spending plan Angelina Jolie spotted in Capitol meeting with senators MORE’s hearings are nakedly political.
As their first witness since Nadler (D-N.Y.) outlined his impeachment investigation without a House vote endorsing one, committee Democrats called Corey Lewandowski, the president’s confidant and one-time campaign manager. The purpose was not to plumb new ground. Congressional Democrats and the White House are arguing over executive privilege; the committee was on notice that Lewandowski — who already had cooperated with the special counsel and testified before Congress three times — would not answer questions about his communications with the president beyond what is laid out in the Mueller report.
Consequently, the purpose of the hearing was to read, again and again, a portion of that report that Democrats deem terribly damaging. To wit, in June-July 2017, Trump instructed Lewandowski — who was not formally on the White House staff — to urge then-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE to limit his recusal from the Russia investigation, so that Sessions then could narrow the scope of Mueller’s investigation. The idea was that Mueller would be permitted to continue investigating in order to prevent Russian interference in future elections, but drop the investigation of whether Trump’s campaign interfered in the 2016 election.
Lewandowski never carried out the president’s directive. Yet, by the Democrats’ lights, Trump’s actions amount to felony obstruction of justice. On these facts, however, there can be no such crime.
Insofar as Russia’s interference in the 2016 campaign is concerned, Mueller, by order of then-Deputy Attorney General Rod RosensteinRod RosensteinWashington still needs more transparency House Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week MORE, inherited the investigation described in March 2017 by the FBI’s then-director, James ComeyJames Brien ComeyGiuliani told investigators it was OK to 'throw a fake' during campaign DOJ watchdog unable to determine if FBI fed Giuliani information ahead of 2016 election Biden sister has book deal, set to publish in April MORE, in House Intelligence Committee testimony. Comey explicitly said that the FBI was conducting a counterintelligence investigation of Russia’s election meddling, which would include examination of any coordination between the Trump campaign and the Kremlin.
A counterintelligence investigation is not a criminal investigation. This is a critical distinction.
Federal obstruction law relates to corrupt interference with the due administration of law in an official proceeding. The crime is called obstruction of justice for a reason. Under federal law, an FBI investigation is not a proceeding that can be obstructed. It is neither a judicial process nor a proceeding (such as a congressional or agency hearing) of the type that the obstruction laws reach.
That is not the end of the matter. The law also says a proceeding can be obstructed even if it is not pending at the time the obstruction takes place. For example, if a person corruptly destroys incriminating evidence or tampers with witnesses out of concern over the possibility that he could be prosecuted in the future, that can amount to obstruction. Naturally, if that kind of corrupt behavior occurs in the context of an FBI investigation, an obstruction crime can occur — but only because the conduct affects the contemplated future proceeding (e.g., the eventual criminal trial), not the FBI investigation itself.
Democrats keep saying Trump obstructed the investigation. He did not, but even if he had, a counterintelligence investigation is not a proceeding that can be obstructed.
Regarding Donald Trump (as candidate, president-elect, and president), the FBI director told him, on multiple occasions, that he was not under investigation.
Now, I happen to believe that was misleading. As I outline in my book, “Ball of Collusion,” I believe the Obama Justice Department and the FBI pretextually used counterintelligence powers against Trump and his campaign — such as surveillance under the Foreign Intelligence Surveillance Act, or FISA — in the hope of finding a crime, or some impeachable offense, even though they lacked a factual basis to believe he had committed a crime. Regardless of whether I am right about that, though, the fact remains that Trump was led to believe there was no criminal investigation.
To summarize, then, on the matter of Russia’s interference in the 2016 campaign, the FBI and, later, Mueller, were not conducting a criminal investigation, and Trump was told he was not a criminal suspect. The FBI and, later, Mueller, were conducting a counterintelligence investigation. Counterintelligence is not a proceeding for purposes of the obstruction laws. Unlike a criminal investigation, counterintelligence does not even contemplate an eventual proceeding; its aim is to gather information about the activities and intentions of foreign powers in order to protect the nation, not to build courtroom prosecutions.
Notice the difference. Criminal investigations are done in order to vindicate the rule of law — i.e., to enforce in judicial proceedings the criminal statutes enacted by Congress. Consequently, we do not want political interference in it — we don’t want partisanship deciding who gets investigated and indicted; we don’t want politics dictating who gets punished and how severely.
By contrast, counterintelligence is unrelated to judicial proceedings. It has nothing to do with the rule of law. It is conducted solely to support the president’s constitutional duty to protect the United States from foreign threats. Consequently, it is completely within the president’s discretion. It is the president, elected by the people whose lives are at stake, who gets to decide what intelligence the country needs — it is not the FBI’s call, much less a determination to be made by a prosecutor dubiously appointed to run a counterintelligence investigation. (The special counsel regulations do not authorize the appointment of a special counsel for counterintelligence purposes. And the Justice Department norm is that counterintelligence cases are not assigned to prosecutors because, to repeat, the objective is not to build a legal case.)
It is certainly true that a president can obstruct justice by corruptly tampering with evidence or witnesses. But a president cannot obstruct justice by shutting down a counterintelligence investigation, or by threatening to shut it down, or by redirecting counterintelligence resources to focus on some threats rather than others. We elect a president to make such judgments, which do involve judicial proceedings that can be obstructed.
Would the lack of an obstruction crime mean Congress lacks legitimate power to consider impeachment? Not at all.
As I observed at the start, Congress does not need a penal crime to impeach a president. If lawmakers believed that the president had irresponsibly endangered the nation by directing the FBI not to collect intelligence on a profound security threat posed by a foreign power, the House would be completely within its legitimate power to file articles of impeachment.
But notice the difference: Under those circumstances, the House would not be impeaching the president over a purported felony obstruction of justice offense. It would be impeaching over abuse of power — what Hamilton described as a political offense, in the sense that it would be a betrayal of the president’s duty to protect the nation.
Of course, even House Democrats would have a hard time leveling that charge against President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE.
Russia’s interference in the 2016 campaign was thoroughly investigated. The Obama administration knew it was happening in real time, and the intelligence agencies compiled a report about it in January 2017. By the time President Trump spoke with Corey LewandowskiCorey LewandowskiTrump to ramp up travel schedule, head back to Mar-a-Lago, adviser says Biden White House moves to oust Trump appointees from advisory boards Trump budget chief refuses to resign from Naval Academy board MORE about the Mueller investigation in summer 2017, Russia’s meddling had been under scrutiny by U.S. intelligence agencies for more than two years. Trump never took any action to limit the inquiry into Russia’s activities. Moreover, he expressly stated that he had no problem with a probe of Russia’s potential to threaten future elections, which naturally would have required an understanding of what they’d done in 2016.
The only thing Trump wanted was public clarification that he was not suspected of wrongdoing in connection with Russia’s 2016 espionage activities. Under the circumstances, that was entirely reasonable, even if the president went about it ham-handedly. The FBI repeatedly told him he was not a suspect; the then-FBI director nevertheless made public statements in March 2017 that led to media and public speculation that the president was a suspect — and Mueller has now concluded that there was no Trump-Russia conspiracy.
Even for the Democrats’ faux impeachment gambit, that record is a non-starter. So, they will continue talking about obstruction of justice — even though what they are talking about is not obstruction of justice.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest bestselling book is “Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.” Follow him on Twitter @AndrewCMcCarthy.