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Why Evidence that Trump Bullied Sessions Could Fortify Mueller’s Obstruction Case


Word on the street is that Robert Mueller is looking into some of the abuse President Donald Trump has thrown Attorney General Jeff Sessions’ way, on the premise that it may amount to more than just unprofessional whining. According to reports, Mueller’s team is looking to see whether the Trump’s incessant disparaging of Sessions last summer was part of a larger pattern of obstruction of justice.

Last summer, Trump began with simple criticism, saying that, “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else.” Then, he called Sessions’ recusal, “very unfair to the president,” and later criticized Sessions for having given “bad answers” at his confirmation hearing. From there, it got worse, with Trump issuing several tweets calling Sessions “weak” and “beleaguered”.

As patently absurd as it is for a president to rail against his own attorney general, it would be awfully difficult to equate Trump’s criticisms, on their own, with “obstruction of justice.” There’s nothing illegal about a president’s complaining about a cabinet member, even when those complaints seem more suited to middle-school cafeterias than the White House — and Robert Mueller certainly knows that.

Likely, Mueller is looking into Trump’s anti-Sessions twitterants for two reasons: 1) Trump’s overt anger may indicate that there had been some shady business brewing between himself and Sessions; and 2) evidence that Trump bullied Sessions could very well fortify an obstruction case based on Trump’s other behavior, because it may show further evidence of the president’s intent.

There are fourteen federal statutes that criminalize actions, any one of which constitutes obstruction of justice. Of those fourteen, three have the potential to apply to facts in which a president harassed his attorney general with demands for loyalty.  The one most likely to be relevant 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…”

18 U.S. C 1503 – Influencing or injuring officer or juror generally, or 18 U.S. C § 1505 – Obstruction of proceedings before departments, agencies, and committees, could certainly be used as well.  Respectively, they criminalize:

 “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede…”


“Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand…”

Most significantly here, the obstruction statutes prohibit a person from trying to impede justice – even if that try were unsuccessful. That means if Trump tried to interfere with the Russia investigation—regardless of his methods– he could be guilty of obstruction. An attempt to influence the investigation by demanding certain behavior from Sessions could absolutely constitute the kind of attempt the statute contemplates. There’s no requirement that Trump’s effort have succeeded. His mere trying would be enough.

However, obstruction of justice also requires proof of intent. Whatever action Trump may have taken must have been done “corruptly” or with an “improper purpose.” And that gets tricky, because generally, it’s tough to prove why a person did something.

In many criminal cases, prosecutors present evidence of how a defendant acted, and based on the surrounding circumstances, fact-finders will infer a defendant’s state of mind based on that contextual information. That is precisely why an investigation into the Trump-Sessions relationship might cause some trouble for Trump. If Trump’s obvious anger with Sessions was motivated by Sessions having refused an improper request by Trump (such as, for example, a request to influence the Russia investigation in some way) it might constitute evidence of the president’s intent. So, while the Trump-Sessions drama would be tough to spin into obstruction on its own, it could very well become an integral part of the constellation of factors proving obstruction.

In some ways, Trump’s public denigration of Sessions looks like the flip-side of Trump’s now-infamous dinner with James Comey. Trump demanded a pledge of loyalty from Comey, and when Comey essentially declined, he was fired. Trump’s very public frustration with Sessions may be the result of the president’s having misjudged Sessions’ response to a similar demand for loyalty. At this point, it’s too early to discuss precisely what occurred privately between Trump and Sessions – but given the president’s behavior last summer, it makes good sense for Mueller to investigate further.

Information about Mueller’s interest in a Trump v. Sessions battle comes at a time when both POTUS and the Attorney General seem to be escalating the drama. On Wednesday, President Trump tweeted the following:

For Sessions’ part, he’s making some pretty loud statements without saying a single world. Last night, the Attorney General had a very public dinner with Deputy Attorney General Rod Rosenstein and Solicitor General Noel Francisco. Although Sessions told the press that the dinner was, “in no way planned as pushback or an act of solidarity against the president,” the pictures speak for themselves.

I’m sure President Trump has nothing to worry about. I’m sure the three top-ranking DOJ officials are just enjoying a night out together.

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