Presidential obstruction of justice

In the Executive Summary of a 108-page report [PDF], “Presidential Obstruction of Justice: The Case of Donald J Trump,” Barry H. Berke, Noah Bookbinder, and Norman L. Eisen, write: There are significant questions as to whether President Trump obstructed justice. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey. There is also a question as to whether President Trump conspired to obstruct justice with senior members of his administration although the public facts regarding conspiracy are less well developed.

Attempts to stop an investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the type of acts that have frequently resulted in obstruction convictions, as we detail. In addition, to the extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges.

While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case. That Comey ignored that instruction is beside the point under applicable law. We also note that potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction. Here, such actions may include fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope there are no ‘tapes’ of our conversations,” despite having “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations.

The president’s legal authority to remove an FBI director is a red herring—at least insofar as it has been used as a blanket justification for the president’s actions. The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose. The president will certainly argue that he did not have the requisite criminal intent to obstruct justice because he had valid reasons to exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose. The public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey. iv that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that his acts may have been done with an improper intent to prevent the investigation from uncovering damaging information about Trump, his campaign, his family, or his top aides.

Special Counsel Mueller will have several options when his investigation is complete. He could refer the case to Congress, most likely by asking the grand jury and the court supervising it to transmit a report to the House Judiciary Committee. That is how the Watergate Special Prosecutor coordinated with Congress after the grand jury returned an indictment against President Nixon’s co-conspirators. Special Counsel Mueller could also obtain an indictment of President Trump and proceed with a prosecution. While the matter is not free from doubt, it is our view that neither the Constitution nor any other federal law grants the president immunity from prosecution. The structure of the Constitution, the fundamental democratic principle that no person is above the law, and past Supreme Court precedent holding that the president is amenable to other forms of legal process all weigh heavily in favor of that conclusion. While there can be debate as to whether a sitting president can be indicted, there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for that time, using a sealed indictment or otherwise, is another option for the special counsel.

Congress also has actions that it can take, including continuing or expanding its own investigations, issuing public reports, and referring matters for criminal or other proceedings to the Department of Justice or other executive branch agencies. In addition, there is the matter of impeachment. We describe the articles of impeachment drafted against Presidents Richard Nixon and Bill Clinton, as well as those drafted against Judges Harry Claiborne and Samuel Kent to show that obstruction, conspiracy, and conviction of a federal crime have previously been considered by Congress to be valid reasons to remove a duly elected president from office. Nevertheless, the subject of impeachment on obstruction grounds remains premature pending the outcome of the special counsel’s investigation. [Continue reading…]

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