White House counselor Kellyanne Conway‘s attorney husband George was not about to let Rudy Giuliani‘s obstruction argument go unanswered on Friday.
Giuliani took to Twitter on Thursday night to say that he was disappointed with Fox News Senior Judicial Analyst Judge Andrew Napolitano.
“I consider Judge Napolitano to be a friend so I write this with regret. An obstruction case where there is no proof of an underlying crime is questionable,” Giuliani said. “If you add to it nothing actually obstructed, there’s no case. Judge reconsider your position. This is a Weismann.”
Napolitano has been highly critical of both Attorney General William Barr and President Donald Trump of late, arguing that there doesn’t need to be an underlying crime to commit an obstruction of justice offense.
“Under Attorney General Barr’s view, you cannot obstruct an investigation of yourself unless you committed the crime for which the government is investigating you. That, of course, is absurd,” he argued. “It would mean that President [Richard] Nixon, who was charged with obstruction of justice for interfering with the investigation of Watergate, would have had to have committed the Watergate burglary himself.”
Harvard Law Professor emeritus Alan Dershowitz opined that Napolitano was wrong because Trump was acting within his authority as head of the executive branch — unlike Nixon.
“The act itself has to be illegal. It can’t be an act that is authorized under Article Two of the Constitution,” Dershowitz countered. “Nixon obstructed justice because he acted outside his authority — destroying evidence, paying hush money, ordering his subordinates to lie to the FBI.”
An example given was the firing of FBI Director James Comey. Trump himself, however, admitted that the firing had to do with “this Russia thing.” We also know that he asked Comey to let an investigation into then-national security adviser Michael Flynn go.
In Napolitano’s view, however, Special Counsel Robert Mueller‘s report detailed obstruction of justice offenses.
When the president asked Corey Lewandowski, his former campaign manager, to get Mueller fired, that is obstruction of justice. When the president asked his then-White House counsel to get Mueller fired and then lie about it, that’s obstruction of justice. When the president asked Don McGahn to go back to the special counsel and change his testimony that’s obstruction of justice… But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.
Enter George Conway.
“There’s a section of the DOJ manual that nicely captures what obstruction of justice is about. It’s got nothing to do with whether there’s an underlying offense,” Conway began. “It’s all about whether someone is trying to wrongly influence a participant in federal proceeding.”
“There doesn’t have to be an underlying offense; the proceeding can be about trying to figure out whether there was an underlying offense. This isn’t hard,” he added. “And … there’s also a whole section of the manual devoted to the basic proposition that obstruction doesn’t have to be successful to be obstruction.”
Conway came armed with DOJ receipts and U.S. Code:
Sections 1512 and 1513 eliminate these categories and focus instead on the intent of the wrongdoer. If the illegal act was intended to affect the future conduct of any person in connection with his/her participation in Federal proceedings or his/her communication of information to Federal law enforcement officers, it is covered by 18 U.S.C. § 1512. If, on the other hand, the illegal act was intended as a response to past conduct of that nature, it is covered by 18 U.S.C. § 1513.
And again, from the DOJ’s criminal resource manual on “inchoate obstruction of justice offenses” (inchoate means a “type of crime completed by taking a punishable step towards the commission of another crime”):
Several of the obstruction of justice provisions prohibit “endeavors” to obstruct. Section 1503 of Title 18, United States Code, prohibits “endeavors” to tamper with jurors and officers of the court. The omnibus clauses of sections 1503 and 1505 prohibit “endeavors” to obstruct justice as well as actual obstructions of justice. Section 1510 of Title 18, United States Code, prohibits “endeavors” to obstruct criminal investigations through bribery.Although “endeavor” might be thought of as a synonym for “attempt,” the Supreme Court has concluded that “endeavor” is broader than “attempt.” United States v. Russell, 255 U.S. 138 (1921). In Russell, the Supreme Court held:The word of the section is “endeavor,” and by using it the section got rid of the technicalities which might be urged as besetting the word “attempt,” and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent . . . . The section . . . is not directed at success in corrupting a juror but at the “endeavor” to do so. Experimental approaches to the corruption of a juror are the “endeavor” of the section.
The conclusion offered in the manual: “It follows that an endeavor to obstruct justice need not be successful to be criminal.”
“So stop it with the garbage, Rudy,” Conway concluded.
Special Counsel Mueller, as we know, didn’t accuse Trump of obstructing justice but didn’t exonerate him either, and gave the following explanation:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment [emphases ours]. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
Mueller detailed numerous incidents related to obstruction, some of which we mentioned above, that were under his microscope. Mueller also noted that a sitting president cannot be indicted, per the DOJ’s longstanding guidelines.
With obstruction, a prosecutor needs to be able to prove “corrupt intent” beyond a reasonable doubt.
As Mueller noted, there needs to be an “obstructive act,” a “nexus between the obstructive act and an official proceeding” and “corrupt intent.”
“The word ‘corruptly’ provides the intent element for obstruction ofjustice and means acting ‘knowingly and dishonestly’ or ‘with an improper motive,'” the Mueller report explained.
Trump’s lawyers argued, as Dershowitz did, that that the President “cannot obstruct justice by exercising his constitutional authority to close Department ofJustice investigations or terminate the FBI Director.” They also said that Trump’s actions over the course of the investigation could be attributed to him being upset about a cloud hovering over his presidency for something he didn’t do (i.e. conspiring with Russia).
Mueller answered that, “In analyzing counsel’s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.”
“As for the constitutional arguments, we recognized that the Department of Justice and the courts have not definitively resolved these constitutional issues,” he added.
[Image via SAUL LOEB/AFP/Getty Images]