Evidence That Trump Obstructed Justice Grows, But It May Not Be Illegal

New disclosures that President Donald Trump tried to fire Special Counsel Robert Mueller, only to be stymied by White House counsel Donald F. McGahn II, are being cited as even more evidence that the President is guilty of obstruction of justice.

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But while there is precedent that such acts may be regarded as obstruction of justice for purposes of considering impeachment, the sweeping powers the Constitution gives the president, the language as well as the clear intent of the relevant federal obstruction statutes, and the clear statement rule all suggest - as three law professors have concluded - that he would not be guilty of the crime of obstruction of justice.

At least three law professors - Harvard law professor Alan Dershowitz, and law professors Jonathan Turley and John Banzhaf of GWU Law School - have independently concluded that a sitting president cannot be guilty of the criminal charge of obstruction of justice simply for exercising his lawful constitutional powers including directing investigations and firing employees; although he might be for actions which are themselves clearly and innately wrongful such as fabricating or destroying evidence, blackmailing a witness, etc.

While some have reached this conclusion largely as a matter of constitutional law, there is a similarly strong argument based upon statutory analysis and legal precedent, suggests Banzhaf.

Even assuming that the unique powers a president has under the Constitution by themselves do not fully protect Trump, it is clear than any construction of a criminal obstruction of justice statute to include a president ordering - directly or indirectly, and regardless of motive - the discontinuance of a criminal proceeding does at the very least raise serious constitutional issues.

Many courts, including the U.S. Supreme Court, have held - under the "clear statement rule" - that statutes which are not completely clear on their face should not be interpreted in such a way as to raise serious constitutional issues unless Congress has unmistakably made clear its intent that it wished to push constitutional boundaries, says Banzhaf.

Thus, even if Dershowitz and others may have read the Constitution too expansively to protect the President regardless of any possible broad reading of relevant criminal statutes, Trump probably cannot be guilty of the crime of obstruction of justice as a simple matter of statutory interpretation.

If Congress had intended the crime of obstruction to include acts by the president seeking to discontinue and/or even narrow any federal investigation, even for clearly wrongful and improper motives, it would have had to have said so clearly and unambiguously in the words of the statute for that construction - which raises serious constitutional issues - to have any validity.

While there is some precedent that deliberate interference with a criminal investigation or prosecution can constitute "obstruction of justice," at least for the purposes of impeachment, it is far from clear that such action, if undertaken by the President, would violate any federal obstruction statute.

Indeed, notes Banzhaf, he obstruction of justice impeachment articles regarding Presidents Nixon and Clinton accused them of destroying or withholding evidence, and telling witnesses to lie under oath; both of which are intrinsically wrongful acts in their own right, and go far beyond simply exercising an executive power to control investigations and prosecutions.

Trump's conduct does not seem to fall within the definitions and language of federal obstruction crimes, Banzhaf argues.

As the impartial Congressional Research Service had previously concluded: "Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. . . . The general federal obstruction of justice provisions are six:
* 18 U.S.C. 1512 (tampering with federal witnesses),
* 1513 (retaliating against federal witnesses),
* 1503 (obstruction of pending federal court proceedings),
* 1505 (obstruction of pending congressional or federal administrative proceedings),
* 371 (conspiracy), and
* contempt. In addition to these, there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit."

None of these appear to include the simple termination of investigations by the person actually overseeing them, whether that is the president, the attorney general, or a U.S. attorney in charge of the case, even if done for a clearly wrongful or illegal purpose, sometimes called a corrupt motive.

Rather, the statutes would apply if individual A seeks to obstruct an investigation or prosecution being conducted by individual B, and perhaps even clearly wrongful acts - such as destroying evidence or bribing a witness - being carried out by investigator B, but not the simple independent decision by investigator B to circumscribe or even discontinue his own investigation, regardless of his motives.

Some experts have tried to compare Trump's efforts to end the FBI's investigation with the words of the criminal obstruction statute to see if what is known about his activities and motives might fall within its statutory definition. But there appears to have been little if any focus on the clear and unique legal authority of any president to terminate criminal investigations by giving direct orders or even indirect hints to subordinates, including his attorney general, the FBI director, or others.

This is a power which might take any such orders - direct, indirect, or even those by implication or suggestion - outside the purview of the criminal obstruction of justice statute for presidents, says Banzhaf, who played a role involving special prosecutors to investigate two different presidents.

Indeed, Dershowitz has gone even further, arguing, "You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate. That's what Thomas Jefferson did, that's what Lincoln did, that's what Roosevelt did. We have precedents that clearly establish that," he said.

Moreover, any president has the unquestioned ability and authority to terminate a federal investigation concerning any one of more individuals simply by issuing pardons absolving them of criminal liability for any crimes they may have committed. For example, when President Bush pardoned Casper Weinberger to end an investigation which might have led back to himself, nobody suggested that Bush may have committed the crime of obstruction of justice.

So it's hard to see how achieving the same result by ordering the discontinuation of a criminal proceeding, directly or by firing an investigator (including a Special Counsel), would be so much more serious as to constitute a felony.

Both the words and the intent of the federal obstruction of justice statute appear to apply primarily to outsiders using clearly improper methods (e.g., bribery) to interfere with the investigation and prosecutorial process being conducted by authorized officials, not necessarily to decisions made by those very officials in charge to use their own lawful authority to suspend an investigation, decline to prosecute, fire or reassign an investigator, etc.

Thus, while a president who deliberately falsified evidence, encouraged perjury, forged documents to implicate someone of a crime, etc. might technically be guilty of conduct proscribed by the statute, any decision by him to simply terminate an investigation or prosecution may not constitute a crime, even if done for a clearly improper purpose or motive.

For example, a decision by a U.S. attorney or other prosecutor to discontinue a prosecution - even if for an improper motive such as to protect a friend - may not technically constitute the crime of obstruction of justice, although it may open him up to other sanctions.

A charge against a prosecutor for obstruction would be even more doubtful if the decision to discontinue an investigation was made not for an improper motive such as to protect a friend, family member, or even himself, but rather was based upon his belief, even if not well founded, that the investigation was fruitless, a waste or time, and a serious distraction from his duties, because there was no underlying crime.

More specifically, even if such a prosecution of the President were possible under obstruction of justice statutes for simply seeking to discontinue an investigation, a prosecutor would have to be able to prove beyond a reasonable doubt that Trump didn't do it because he thought that there was no underlying crime to be uncovered.

Moreover, since prosecutors enjoy absolute immunity for actions taken in their official capacity, he probably would not be liable criminally or even civilly, suggests Banzhaf.

If that is true of a mere prosecutor, the low man on the totem pole, the same would seem to apply to any government official who directs - even contrary to well established custom - that a prosecution be discontinued; and this would include the attorney general or even the top law enforcement official, the president.

That's why, in upholding the constitutionality of a unique federal statute (no longer in effect) which provided for the appointment of an independent counsel, the Supreme Court stressed the constitutional imperative that federal prosecutions must be under the control of the president who is ultimately responsible for all federal law enforcement.

Those conducting such investigations must therefore, the Supreme Court said, subject to his control as head of the executive branch, and he must have the power to cause them to be fired if they disobey orders, including presidential orders to terminate an investigation.

Indeed, this is exactly what happened in the "Saturday Night Massacre" where President Nixon used his firing authority to terminate part of an investigation to which he had objected.

Although this action had disastrous political repercussions, and led to a unique statute which would permit the appointment of a somewhat independent special prosecutor - who nevertheless was still part of the executive branch under the president, and subject to presidential termination indirectly by his attorney general for cause - Nixon's two firings themselves would not seem to constitute the crime of obstruction of justice.

In any event, any discussion of potential criminal liability for Trump may be strictly academic, since the weight of legal authority holds that a sitting president cannot be indicted or tried for any crime while in office, and Mueller seems to be legally bound by this policy and position. Moreover, any attempt to indict Trump for obstruction of justice could be prevented if the President simply granted to himself a pardon for any and all federal crimes he may have committed.

Moreover and in addition, since any attempt to try Trump - for the felony obstruction of justice or any other crime - could easily create a constitutional crisis far more serious than Watergate, the best if not the sole remedy for any presidential wrongdoing in this regard may have to be impeachment, argues Banzhaf.