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Here’s The Fundamental Problem with Barr’s ‘No Obstruction’ Conclusion


Attorney General William Barr’s statement to Congress about the Mueller investigation was released Sunday, and nestled between “Trump didn’t collude with Russia to influence the election, “ and “we promise to get the actual report out to the public ASAP” is a troubling couple of lines.

Deputy Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

I see. So Robert Mueller and his team of 19 lawyers and 40 FBI agents spent eighteen months getting 2800 subpoenas and 500 search warrants, and interviewing 500 witnesses before concluding on whether Trump should be charged with collusion to influence the 2016 election – but Barr and Rosenstein decided to nix any concerns about obstruction in an afternoon. Sure, that sounds reasonable.

Barr explained that the DOJ’s decision not to pursue obstruction charges was not the result of any determination on the hotly-debated question of presidential immunity, but rather, on the issue of intent. According to Barr, “the absence of [evidence that Trump was involved in a crime relating to Russian election interference] bears upon the President’s intent with respect to obstruction.”

In other words, it looks a lot like the DOJ is drinking some of President Trump’s Kool-aid when it comes to obstruction. Since Trump’s demand for loyalty and subsequent firing of James Comey as FBI director, legal experts have voiced serious concerns that those actions (among others) constitute obstruction of justice. Trump, on the other hand, has taken every opportunity to equate obstruction of justice with Russian election collusion; to hear Trump tell it, the Comey firing and election interference are two sides of the same coin, inextricably linked for all time. And from Barr’s letter, it sure seems like the DOJ is buying what he’s selling.

There are fourteen federal statutes that criminalize actions, any one of which constitutes obstruction of justice. Of those fourteen, the one most likely to be relevant to Trump would be 18 U.S.C. 1512 – Tampering with a witness, victim, or an informant.  It prohibits:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so…

AG Barr is certainly correct to note that any conviction for presidential obstruction of justice would require a finding that Trump took some kind of action “corruptly” or with an “improper purpose.” That kind of finding would always be tricky, because it can be difficult to prove why someone took a particular action. The only person qualified to testify about what is going on in the brain of Donald Trump is Trump himself; maybe he fired Comey for a sufficiently improper purpose, or maybe he was simply exercising executive discretion in a perfectly legal manner.

The difficulty of prosecuting any crime requiring specific intent is exactly what’s in play with regard to Trump and obstruction of justice. In many criminal cases, prosecutors present evidence of the circumstances surrounding a particular action, and jurors infer a defendant’s state of mind based on that contextual information. Certainly, if Mueller had concluded that Trump colluded with Russia to influence the 2016 election, it would be easier to infer that firing Comey was a direct effort to cauterize an investigation into that exact wrongdoing. Collusion plus Comey would easily equal obstruction, and we’d have a nice, tidy case.

However, easy as it would have been to find the two together, election collusion is by no means required for a finding of obstruction. Mueller’s exhaustive investigation of Trump’s ties with Russia was not only a serious PR problem for the president, but also had clear potential to uncover wrongdoing wholly unrelated to the election. From questionable real estate deals to tax issues to plain old perjury, an investigation by a singly-focused special counsel presented major risks to its subject; that subject may well have wanted to shut it down for reasons having nothing to with illegally colluding to win the election.

Let’s not forget, too, that back when Comey’s every move made headlines, Trump said in an NBC interview that he’d fired Comey because of “You Know, the Russia thing.”  Later, Trump changed his story – but not before several legal experts had already been convinced that he had likely committed obstruction. None of that, however, appeared to occur to AG Barr since the release of Mueller’s report.

Barr explained that evidence of Russian election collusion wouldn’t have been strictly necessary for an obstruction prosecution, but that:

…the absence of such evidence bears upon the President’s intent with respect to obstruction.

and continued:

…the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent…

The DOJ’s quick conclusion that an obstruction prosecution is a no-go is hardly a surprise; Barr sent a nineteen-page memo in June 2018 to Deputy AG Rod Rosenstein and Assistant AG Steve Engel arguing that Robert Mueller’s obstruction theory is “fatally misconceived” and “would do lasting damage to the Presidency and to the administration of law within the Executive branch,” if endorsed by the DOJ.

Barr detailed a number of legal theories and dangers, and concluded by warning that any obstruction prosecution would severely limit the president’s ability to properly make controversial political decisions. In other words, Barr decided where he stood on obstruction before he read Mueller’s report had even been drafted.

Let’s also not forget that while Mueller’s report concluded that Trump hadn’t been involved in any Russian election misdeeds, it made no such conclusion on obstruction. Rather, it simply made a list of findings labeled “difficult issues,” and punted the matter to the DOJ (or perhaps Congress) to sort out. “Difficult” must be a relative term, though. The attorney general seems to have no problem disposing of Mueller’s concerns on the grounds that if they’re not Russian, they’re crap.

At this point, opining on whether Trump should or should not be prosecuted for obstruction is premature; prosecutorial decisions are appropriately made only when informed by available and admissible evidence. For that, we’ll need to wait for Barr to fulfill his promises of expedience.


[image via Win McNamee/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos