By Lynda Bryant-Work
Each day there seems to be some new question about President Donald Trump attempting to obstruct justice.
The question of Trump’s obstruction of justice reared its ugly head beginning about the time of former FBI Director James Comey’s firing and has become increasingly the focus of attention.
With continued indictments at this stage of Special Council Robert Mueller’s investigations with mounting evidence of alleged wrong doing by many in the Trump administration, the obstruction issue keeps growing.
Obstruction of justice, in United States jurisdictions, is the crime of obstructing prosecutors or other officials. Common law jurisdictions other than the United States tend to use the wider offense of perverting the course of justice.
So just what does obstruction of justice entail?
Obstruction of justice is defined by federal statute as any “interference with the orderly administration of law and justice” and governed by 18 U.S.C. §§ 1501-1521. Federal code identifies more than 20 specific types of obstruction, including “Obstruction of proceedings before departments, agencies, and committees” (18 U.S.C. § 1505), the specific code section cited in the Nixon and Clinton articles of impeachment.
Other ways an individual may commit this offense include, but are not limited to, the following acts:
-Influencing or injuring an officer or juror generally (18 U.S.C. § 1503)
-Obstruction of criminal investigations (18 U.S.C. § 1510)
-Tampering with a witness, victim, or an informant (18 U.S.C. § 1512)
-Retaliating against a witness, victim, or an informant (18 U.S.C. § 1513)
-Destruction of corporate audit records (18 U.S.C. § 1520)
The crime can take any number of forms, whether it’s bribery, tampering with evidence, lying to investigators,abusing one’s power, or some other act intended to impede a criminal investigation.
The federal obstruction of justice statute is written broadly and focuses more on the effect (or intended effect) of a particular action rather than the specific act itself. Therefore, seemingly innocuous acts, such as Trump tweets, could be construed as criminal activity if they have the intended effect of impeding justice.
The elements required for a conviction on an obstruction of justice charge differ slightly by code section. For instance, prosecutors must prove the following elements for a conviction under section 1503 of the federal statute (influencing or injuring an officer or juror):
- There was a pending federal judicial proceeding;
- The defendant knew of the proceeding; and
- The defendant had corrupt intent to interfere with or attempted to interfere with the proceeding.
But regardless of the specific section of federal law (1501 through 1521) cited in a particular case, the prosecution need not prove any actual obstruction — the defendant’s attempt to obstruct is enough. The element of intent is usually the most difficult to prove; although memos, phone calls, tweets and recorded conversations may be used as evidence to establish this, in Trump’s case… tweets could be used.
During the Watergate investigation, President Richard Nixon denied any knowledge or involvement in the DNC break in by campaign staff. Subpoenaed White House recordings proved otherwise, and Nixon resigned after articles of impeachment were brought to the House floor.
Twenty-four years later, President Bill Clinton faced an obstruction of justice charge and one charge of perjury and formed the basis for Clinton’s impeachment.
Fast forward to the present, and obstruction of justice is a key part of the Mueller investigation connected to Russia and Trump.
An important piece of evidence comes after Trump fired Comey and learned that he was under investigation for obstruction of justice. It would be easy for Mueller to prove that Trump read or viewed legal analysis discussing obstruction.
Trump’s desire to fire Mueller despite knowing firing a law enforcement official overseeing the Russia investigation could raise obstruction concerns is strong evidence that Trump’s intent was to obstruct the investigation. Any excuses offered by Trump bolster Mueller’s case because it would indicate the president knew that firing Mueller would impede the investigation.
As the expanding investigation continued and indictments handed down, with 32 pleading guilty, the president has become more volatile in lashing out against Mueller and his team, seeking any way at all to discredit them, and even demanding Mueller be fired. This could be viewed as attempting to obstruct justice, which also applies to overt coercion of court or government officials via the means of threats or actual physical harm, and to deliberate sedition against a court official to undermine the appearance of legitimate authority.
Trump doesn’t stop there and may have yet crossed another line that risks embroiling him in criminal conduct, and which he seems willing to perform very publicly on Twitter: intimidating witnesses.
Potential witnesses find themselves on the receiving end of Trump’s Twitter account including former acting FBI Director Andrew McCabe – whom Trump has criticized as conflicted and had Attorney General Jeff Sessions fire 26 hours before his retirement – and Deputy Attorney General Rod Rosenstein, who appointed Mueller. Trump has launched broadsides against these potential witnesses in comments to the press as well.
Trump’s new threat against former intelligence officials is much worse than it looks.
It’s not just an effort by the president to silence a group of his critics. Instead, it could be an attempt to undermine the credibility of witnesses in the ongoing Russia investigation. Not only has Trump threatened to ruin them for they have said, it may be an attempt, out in the open, to discredit them over what they saw.
Defined in the omnibus clause of 18 U.S.C. § 1503, which provides that “whoever . . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be (guilty of an offense).”
Obstruction of justice is a unique crime that criminalizes acts against justice. Those accused of obstruction of justice may face stiff penalties because this crime is considered to undermine the validity of the justice system.
Trump has harped about the “rigged witch hunt” investigation into his campaign before, but until today he had never directly and publicly asked Sessions to step in and end it.
The president’s recent tweet calling on Sessions to stop the investigation “right now” generated a new wave of criticism from lawmakers. Since last year, Muller has been probing whether the Trump campaign was involved with Russia’s interference in the 2016 election.
Rep. Adam Schiff (D-Calif.), who has supported legislation to protect Mueller’s investigation, called Trump’s tweet “an attempt to obstruct justice.”
Sen. Susan Collins (R-Maine) agreed with Schiff, calling it “inappropriate” and pointing out that Sessions has recused himself from the investigation.”
Other lawmakers were also quick to condemn Trump’s attempt to get Sessions involved in ending the probe into his campaign, with Rep. Ted Lieu (D-Calif.) saying it is one of several examples of Trump obstructing justice, and Rep. Gerry Connolly (D-Va.) calling it a “direct threat to the rule of law in America.“
“If Trump exercises his power — even his lawful power — with a corrupt motive of interfering with an investigation, that’s obstruction,” says Lisa Kern Griffin, an expert on criminal law at Duke University. “The attempt is sufficient, and it seems to be a matter of public record already.”
If Mueller feels he has enough evidence, he could seek permission to indict and prosecute Trump. It’s not clear that charges can actually be brought against a sitting president, but Mueller’s findings could be turned over to Congress and serve in an impeachment.
There are basically two reasons legal observers believe Mueller has a good obstruction case. First, the evidence of obstruction is far stronger than the evidence that Trump himself was involved in with Russian efforts. Second, the crime of obstruction is legally straightforward.
Clearly, Trump has proven he will use his authority to target anyone he perceives as a threat, and will threaten and undermine a criminal probe. Trump isn’t just petty and thin-skinned – he is a guy in a state of panic over the direction each investigation is taking.
From Mueller’s criminal probe to his former attorney Michael Cohen’s secret tapes, Trump may be in big trouble, and it appears he is trying to abuse his power to get out of it. The public doesn’t know everything Mueller does. It could be that the collusion case is a lot clearer, or the obstruction case a lot murkier, than it appears.
But what is known suggests that Mueller is taking the obstruction of justice seriously and his chances of making his case are quite good.