Alex Whiting writes: The criminal investigations of the Trump administration seem largely to have followed two separate paths: on the one hand, whether there was collusion between the Trump campaign and Russian interference with the election, and on the other hand whether President Trump obstructed justice. Commentary has alternated between these inquiries, but has not always connected the two. In part that is because of the piecemeal way the evidence has emerged. In part it is because the two inquiries have distinct legal elements and can, in fact, exist separately. However, at a moment when our attention is focused on the question of possible collusion, it is worth remembering this obvious point: the two investigations are, in fact, very much connected. As evidence mounts of one set of crimes (collusion), it also supports the other (obstruction).
As I set forth here, and here, the obstruction investigation is likely focused at the moment on whether President Trump sought improperly to influence or shut down the FBI’s investigations into former National Security Advisor Michael Flynn and/or investigations into possible collusion between the Trump campaign and the Russians. Because Trump’s actions are largely not in serious dispute, the focus has mainly been on his intent, that is, did he act “corruptly” or with an improper purpose in his interactions with FBI Director James Comey, or in his subsequent firing of Comey?
To the extent it was believed that there was no underlying story of wrongdoing by the Trump campaign with respect to Russian interference with the presidential election, the obstruction allegations seemed to float on their own. Despite the old adage that “the cover-up is always worse than the crime,” obstruction charges will be harder to prove if in fact there were no improprieties to hide. Remember that prosecutors exercise considerable discretion in deciding whether to bring charges, and in making that decision they will assess not only whether the individual’s conduct and intent satisfies all the elements of the alleged crime, but also whether it feels like criminal conduct, whether the jury will be persuaded to convict.
Regarding Trump, if it seemed that Trump was acting only to block the investigation and prosecution of Michael Flynn’s individual acts of alleged wrongdoing, some of which themselves might raise questions about whether they warrant criminal charges, a prosecutor might hesitate (not to mention Congress, when considering the question of impeachment). Could the prosecutor persuade the jury that when Trump asked Comey to let the Flynn investigation go, Trump wasn’t just trying, in his bumbling Trump sort of a way, to put in a good word for Flynn? Could the prosecutor persuade the jury that in firing Comey, Trump had not simply concluded that Comey was badly mishandling the Russia investigation and had to be replaced by a more effective Director?
Many might think that the evidence is already sufficient to overcome such defenses, but the point is that absent some indication of a larger, self-interested, cover-up, the ultimate factfinders – whether they be on a jury or in Congress – might be more likely to give Trump the benefit of the doubt, grabbing onto these explanations as a way to excuse Trump’s conduct. And that is why the emerging collusion evidence could end up mattering so much to the obstruction inquiry. It has the potential to change everything. Suddenly, Trump’s actions to stop the FBI’s investigations, not to mention his incessant tweets and public statements about the Russia inquiries, feel much more sinister. [Continue reading…]