PART TWO: OBSTRUCTION OF JUSTICE “I need loyalty – I expect loyalty.”
Part One of this series looked at the sexual misconduct of the 45th President of the United States. Part Two examines whether Trump committed obstruction of justice in the events leading up to, and including, becoming President.
The key players in the case for obstruction of justice are: Trump, Michael Flynn, James Comey, Jeff Sessions, Andrew McCabe, and Rod Rosenstein.
It is important to distinguish between the charges of collusion with the Russians to interfere and influence the 2016 presidential election, and the charge of Obstruction of Justice. The two overlap but are not the same. The investigation into collusion has triggered a chain of events that has resulted in an investigation into obstruction.
Federal law prohibits the crime or act of willfully interfering with the process of justice and law especially by influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer by furnishing false information in or otherwise impeding an investigation or legal process (Merriam-Webster). This is obstruction.
Obstruction of Justice is a crime that is difficult to prove, because it depends on a person’s state of mind. Prosecutors have to show corrupt intent. To prove that Trump obstructed, prosecutors must show that something was done “corruptly” or with the specific intent to obstruct an investigation.
The interesting side note on obstruction is that obstruction is a crime whether or not
the attempt succeeds. If the suspect had “corrupt intent” to obstruct, then obstruction occurred.
Here is the timeline of events that indicate possible obstruction of justice:
*March 3, 2016: Jeff Sessions named by Trump as the chairman of his National Security Advisory Committee.
*June 2016: (CNN) The now infamous Trump Tower meeting occurs between Donald Trump Jr., Jared Kushner, then-campaign chairman Paul Manafort, and a Kremlin-linked attorney Natalia Veselnitskaya to get Russian supplied dirt on Hillary Clinton.
*July 2016: The FBI opens a counterintelligence investigation into Russian meddling in the ongoing presidential election, including whether the Trump campaign had been working with the Russians.
The investigation was triggered by a report in May from an Australian diplomat that after “a night of heavy drinking” one of Trump’s foreign policy advisors, George Papadopoulos, mentioned that the Russians had incriminating dirt on the Clinton campaign.
*July, 2016: (ABC) Sessions speaks at a RNC event hosted by the Heritage Foundation, a conservative think tank. After the speech, Sessions speaks to a small group of ambassadors, including Russian ambassador Sergey Kislyak.
*September 2016: (ABC) Sessions meets with Russian ambassador Kislyak in his office in Washington.
*November 8, 2016: Trump wins the election.
*December 29, 2016: National Security Adviser Michael Flynn calls Russian Ambassador Sergey Kislyak to discuss how Russia plans to respond to the Obama Sanctions. He asked the Russians to refrain from retaliating since Trump would soon be in office.
*January 6, 2017: Trump and James Comey meet for the first time at Trump Tower. Comey informs Trump that he isn’t personally under investigation as part of the FBI counterintelligence case at that time.
It is after this meeting that Comey decides to keep detailed notes of his meeting, testifying later to Congress that, “I was honestly concerned that he might lie about the nature of our meeting, and so I thought it really important to document.” (Slate Magazine)
*January 10, 2017: Sessions lies to the Judiciary Committee during his confirmation hearing. Sen. Al Franken (D-Minn) asks, “If there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign?” Sessions answers, “I didn’t have – did not have communications with the Russians.”
*January 19, 2017: NYT first reports that U.S. law enforcement and intelligence agencies are conducting a counterintelligence investigation into the links between Russian officials and Trump associates, including campaign chairman Paul Manafort, foreign policy adviser Carter Page, and adviser Roger Stone.
*January 20, 2017: Trump Inaugurated.
*January 22, 2017: Trump hosts a ceremony at the White House to honor law enforcement officials, including James Comey. Despite Comey’s attempts to not be recognized, Trump singles him out at the end of the meeting by saying Comey is “more famous than me.”
Comey later reveals that he did not want to attend out of worries that Trump would try to form a closer relationship with him, which would violate the long-standing separation of the FBI from the Presidency.
*January 24, 2017: Michael Flynn is interviewed by the FBI. He falsely denies having spoken to Ambassador Kislyak about the Russian sanctions.
*January 26, 2017: Acting Attorney General Sally yates informs White House counsel Don McGahn that Flynn lied about his conversation with Kislyak to Vice President Pence.
This is extremely important because the official White House explanation later for firing Flynn was that he had lied to Pence. This action by Yates comes several weeks before Flynn was actually fired, so the White House was aware of the lies well in advance.
*January 27, 2017: Trump calls James Comey to invite him to a dinner at the White House. Comey is under the impression that it would be a group dinner, only to discover when he arrives that it is just the two of them.
Trump asks Comey if he wants to stay on as FBI Director. Comey answers yes. Trump then asks Comey to pledge loyalty to Trump, saying, “I need loyalty – I expect loyalty.” Comey replies by offering honesty. Trump responds by saying “That’s what I want, honest loyalty.”
Comey later testified that he felt this dinner was an attempt to create a “patronage relationship” between he and the president.
Demanding loyalty from the head of an organization investigating you, when you have the power to fire that person, is a straight path to obstruction of justice. FBI directors are not supposed to be political loyalists (Washington Post)
*February 13, 2017: General Michael Flynn is fired/resigned after 23 days on the job over revelations that he lied to Vice President Pence, other administration officials, and the FBI about the conversation between him and Russian Ambassador Sergey Kislyak in December about the U.S. sanctions against Russia.
*February 14, 2017: James Comey, other Intelligence Community officials, and senior officials meet at the White House to discuss anti-terrorism efforts. At the end, Trump asks Comey to stay behind. Jeff Sessions leaves the room, something that is highly irregular.
Trump asks Comey (according to Comey notes of the meeting) to “see your way clear to letting this go, to letting Flynn go.” Comey said he believed Trump was asking him to “drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.” (NY Magazine) Trump denies this conversation occurred.
This is extremely important because it is a clear example of Trump trying to influence an investigation. By clearing the room, Trump removes any possible witnesses to the encounter.
*February 15, 2017: Comey asks Jeff Sessions to ensure that he will never be left alone in a room with Trump again, and described the meeting as very inappropriate.
Also on this day, then White House Chief of Staff Reince Priebus asks the FBI Deputy Director Andrew McCabe what the agency could do about the New York Times report that alleged multiple contacts between the Trump campaign and Russian – another indication of Trump, or his administration, attempting to kill or impede an investigation.
*March 1, 2017: News breaks that Sessions met with the Russian ambassador twice in 2016, and lied about it at his confirmation hearing.
*March 2, 2017: Attorney General Jeff Sessions recuses himself from any decisions related to the Russia investigation. This follows the revelation that Sessions had failed to inform Senators about his own meetings with the Russian ambassador during his confirmation hearings.
This infuriates Trump, who later said publicly that Sessions’ recusal was “unfair to the President,” and that he wouldn’t have ever hired him if he knew that he would [follow the law] and recuse himself.”
*March 20, 2017: James Comey testifies before the House Intelligence Committee and confirms that the FBI is investigating whether members of the Trump campaign colluded with the Russians in their efforts to influence the 2016 presidential election. He also dismisses claims that Obama had Trump wiretapped during the campaign.
*March 22, 2017: Trump asks Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo to intervene with Comey, and urge Comey to end his investigation into Flynn. They decline.
This is directly attempting to interfere with an ongoing investigation.
Around the same time (New York Magazine), Trump reportedly called Coats and Admiral Michael Rogers, director of the National Security Agency, and asked them to publicly deny that there was any evidence of collusion between the Trump campaign and the Russian government. Trump also questions the accuracy of the Intelligence Community Assessment that Russia had interfered with the election.
Another huge moment in the obstruction chain. According to The Atlantic, “attempting to use the CIA to stifle the FBI investigation into Watergate was among the articles of impeachment against Nixon.”
In addition to the Trump requests, the Washington Post reports that senior White House officials separately requested that top intelligence officials consider shutting down the investigation, asking “can we ask him to shut down the investigation?” and “are you able to assist in this matter?”
Here, Trump’s senior officials are trying to impede or stop the investigation.
*March 30, 2017: Trump calls Comey to ask him what can be done to “lift the cloud” of the Russia investigation. He asks Comey to announce publicly that Trump himself was not under investigation. Comey responds that the FBI is moving as quickly as it can, and that a full investigation is in Trump’s best interest.
Trump repeatedly urges Comey to make public that he is not under investigation.
Also on this day, the Wall Street Journal reports that Mike Flynn has informed the FBI and congressional officials of his willingness to be interviewed by the House and Senate investigators in exchange for immunity from prosecution.
*March 31, 2017: Trump tweets “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!” He again complains to Comey that the “cloud” is interfering with his ability to act as president, and asks whether he should have staff contact Acting Deputy Attorney General Dana Boente.
Comey advises Trump of the traditional channel of communication, which is for White House Counsel to contact the DOJ leadership to make such requests.
Comey would later testify that after Trump’s requests, his primary concern was not infecting the investigation team. “We don’t want the agents and analysts working on this to know the President of the United States…has asked…to get rid of this investigation.”
*April 11, 2017: Trump calls Comey again to ask what has been done to make it clear that Trump isn’t under investigation. Comey suggests Trump talk to Acting Deputy Attorney General Dana Boente.
This will be the last time that Trump and Comey speak.
*May 2, 2017: Trump attacks Comey the day before his is to testify before the Senate Judiciary Committee, tweeting: “FBI Director Comey was the best thing that ever happened to Hillary Clinton in that he gave her a free pass for many bad deeds! The phony Trump/Russia story was an excuse used by the Democrats as justification for losing the election. Perhaps Trump just ran a great campaign?”
This is an attempt to intimidate a witness.
*May 3, 2017: Comey testifies before the Senate Judiciary Committee and refuses to answer whether there is evidence of collusion between the Trump campaign and Russia. This testimony enrages Trump, and triggers the president’s final decision to fire Comey.
*May 5, 2017: According to the New York Times, a Hill staffer is approached by an aide to Jeff Sessions and asked if he or she has any “derogatory information” about Comey. The New York Times’ Michael Schmidt reported that, “The attorney general wanted one negative article a day in the news media about Mr. Comey.”
These are attempts to discredit a witness.
*May 6, 2017: Trump asks senior advisor to the president, Stephen Miller, to draft a letter to Comey firing him for refusing to publicly confirm that he wasn’t personally under investigation in the Russia probe.
NYT Michael Schmidt reported that people who had seen the letter said that the first line mentioned the Russian investigation.
White House Counsel Don McGahn says the letter is problematic in multiple ways, because of the angry tone and references to private conversations between Trump and Comey. The letter was never sent.
Getting help from others to create a false story about why Comey was fired could show “corrupt intent.”
*May 8, 2017: Trump meets with V.P. Pence, Sessions, and Deputy Attorney General Rosenstein who agrees to draft a memo making the case for firing Comey.
Also on this day, Trump attacks Sally Yates on the day before her testimony to the Senate, and accuses her, in a tweet, of leaking classified information. “Ask Sally Yates, under oath, if she knows how classified information got into the newspapers soon after she explained it to W.H. Counsel?”
This tweet could offer supporting evidence of an attempt to intimidate a witness in the Flynn investigation, much like his attempting to intimidate Comey before his testimony.
*May 9, 2017: Trump fires James Comey. In doing so, Trump cites the recommendation from Sessions (which was based on the memo that Rosenstein wrote, that Trump asked for). Rosenstein’s memo did not recommend firing Comey, rather it focused on his handling of the Clinton email investigation, but does reference the Russia investigation and Comey’s actions toward Trump personally.
Comey is informed of his firing, not by letter, but by news reports.
The White House initially claimed that Comey was fired because “he harmed the integrity of the FBI” by publicly releasing “derogatory information” about Hillary during the investigation into her email server. Trump later said he fired Comey because of the “Russia thing.”
Firing the official overseeing the investigations into the Trump campaign and Trump associates, and lying about the reason, is an obvious attempt at trying to impede those investigations.
*May 10, 2017: Trump hosts an Oval Office meeting with Russian officials, including Foreign Minister Sergey V. Lavrov, and Ambassador Sergey Kislyak, during which time no U.S. press was allowed in the room, but a Russian photographer was.
In the meeting, Trump tells the senior Russians “I just fired the head of the FBI,” and refers to Comey as a “nut job,” and that firing Comey had relieved “great pressure” on him. “I faced great pressure because of Russia. That’s taken off…I’m not under investigation.”
According to the New York Times, White House Press Secretary Sean Spicer did not dispute the account.
This shows Trump’s state of mind in firing Comey. It wasn’t about his inability to do the job, but because his investigation was making Trump look bad.
*May, 2017: Trump summons FBI Acting Director Andrew McCabe to the Oval Office and asks him who he voted for in the 2016 election. McCabe responds by telling Trump he did not vote.
Trump vented anger at McCabe that his Democratic wife had received several hundred thousand dollars in donations for a failed 2015 state Senate bid from a political action committee controlled by a close friend of Hillary Clinton.
This corroborates Comey’s testimony about Trump demanding loyalty.
*May, 2017: Trump pushes Sessions to pressure new FBI Director Christopher Wray to fire Andrew McCabe, which causes Wray to push back by threatening to resign. (Axios)
This creates a situation in which McCabe now becomes a witness in the obstruction case because McCabe told Congress that Comey had recounted his conversations with Trump, including the “loyalty” conversation.
This is important because Mueller could use Trump’s desire for loyalty from McCabe, then later the desire to remove McCabe, as evidence that Trump wanted to undermine the investigation.
*May 11, 2017: In an interview with NBC’s Lester Holt, Trump says, “You know, this Russia thing with Trump and Russia is a made up story…” Trump said he was going to fire Comey regardless of what Rosenstein said, and confirmed that it was about the Russia investigation. This directly contradicts his administration’s account of the firing.
So in other words, he admitted that he was attempting to impede the investigation.
*May 12, 2017: Trump tweets a threat to Comey: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!”
Directly threatening a potential witness.
*May 17, 2017: Deputy Attorney General Rod Rosenstein announces the appointment of a special counsel to investigate Russian meddling in the election, and any connections with the Trump team, as well as any matters that may arise from that investigation. Rosenstein appoints Robert Mueller, the man he replaced at the FBI, as the Special Counsel.
Trump goes ballistic and tweets, “This is the single greatest witch hunt of a politician in American history” and “With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special counsel appointed!”
Shortly after, Trump and his allies start publicly floating the idea that Trump might fire Mueller, and issued veiled warnings that Mueller should not probe into the Trump family’s financial dealings.
Threatening to fire Mueller is a direct attempt to impede an ongoing investigation.
Trump berates Sessions in an Oval Office meeting, and tells him he should resign. He accuses Sessions of disloyalty, and then launches into a series of insults against Sessions. (New York Times)
*May 18, 2017: Rosenstein testifies before a closed-door Senate meeting that he knew Trump wanted to fire Comey before he wrote his letter that Trump used to justify Comey’s firing.
*June 13, 2017: The New York Times reports that an enraged Trump wanted to fire Mueller but was subdued by staff.
*June 13, 2017: Sessions testifies in front of Senate Intelligence Committee and issues a “sweeping denial of any personal involvement in Russian interference in the 2016 presidential campaign.” (ABC)
*June 14, 2017: Multiple press outlets report that Mueller is looking into potential obstruction of justice by the president.
*June 15, 2017: Trump implies by tweet that the Mueller investigation is “tainted.” He tweets: “You are witnessing the single greatest WITCH HUNT in American political history – led by some very bad and conflicted people! #MAGA”
An immediate attempt to discredit and impede the new investigation, as soon as it is announced.
*June 16, 2017: Trump attacks Deputy Attorney General Rosenstein on Twitter: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt”
This, of course, is a lie. Trump asked Rosenstein to draft a memo making the case for firing Comey, but Rosenstein’s memo did not recommend firing Comey.
*June 22, 2017: Trump announces that he does not, in fact, have taped recordings of his conversations with Comey.
*June, 2017: A New York Times article reports that an attempt by Trump to fire Mueller due to “conflicts of interests” would be difficult because there were not any actual conflicts and it appeared to be a thinly veiled excuse to get rid of Mueller.
They also reported that Trump had considered firing Rosenstein and replacing him with Associate Attorney General Rachel Brand, the no. 3 Justice Department official, so she could oversee Mueller.
This is an important piece of evidence “because it comes after Trump fired Comey and learned that he was under investigation for obstruction of justice.” Trump’s desire to fire Mueller, despite the knowledge that firing a law enforcement official overseeing the Russia investigation could raise obstruction concerns, is actually strong evidence that Trump’s intent was to obstruct the investigation. (Politico)
Trump’s excuses also strengthen Mueller’s case because they show that Trump realized that firing Mueller would be wrong.
*July 8, 2017: The New York Times reports about the Donald Trump Jr. meeting at Trump Tower with a Kremlin-linked lawyer in June 2016 attended by then campaign manager Paul Manafort, and Jared Kushner.
Stephen Bannon, Trump’s former chief strategist, described the Tower meeting as “treasonous” and “unpatriotic.” (Fire and Fury: Inside the Trump White House)
In response to the media questions about the meeting, The New York Times reports that while aboard Air Force One, “Trump personally dictated a statement” for Donald Trump Jr. to issue, “in which Trump Jr. said that he and the Russian lawyer had ‘primarily discussed a program about the adoption of Russian children.’”
This can be viewed as a blatant attempt to cover up and lie about the true nature of the meeting with Russian officials during the 2016 election campaign.
*July 9, 2017: in a New York Times interview, Trump said that had he known Sessions was going to recuse himself from the Russia investigation, he wouldn’t have nominated him for Attorney General. He then repeats that he relied on the Rosenstein letter in deciding to fire Comey. He repeats his claim that Comey leaked confidential information.
Had he known Sessions was going to follow the law, he never would have hired him.
He also mischaracterizes Comey’s description of the meeting where Trump pressured him to drop the Flynn investigation, then denies that the mischaracterized version occurred at all. He also again denies clearing the room to talk to Comey.
*July 10, 2017: Trump tweets that Comey illegally leaked classified information to the media, repeating an unfounded claim that his lawyer had made previously: “James Comey leaked CLASSIFIED INFORMATION to the media. That is so illegal!”
Trump is attempting to discredit a witness who might testify against him.
*July 21, 2017: Trump asks advisors about his power to pardon aides, family members, and even himself in connection with the probe. (Washington Post)
*July 25-26, 2017: In a series of tweets, Trump renews his attacks against Sessions, and attacks Acting Director of the FBI Andrew McCabe for having conflicts of interest because of the Clintons. “Problem is that the acting head of the FBI & the person in charge of the Hillary investigation, Andrew McCabe, got $700,000 from H for wife.” Also, “Why didn’t A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in charge of Clinton investigation but got big dollars ($700,000) for his wife’s political run from Hillary Clinton and her representatives. Drain the Swamp!”
*August 1, 2017 In a Wall Street Journal interview, Trump again berates Sessions for recusing, and dismissed Sessions’ early support of his campaign as “no great sign of loyalty.”
*August 3, 2017: Vox reports that in late May, McCabe told several people in high-level FBI management that they should consider themselves potential witnesses in any potential obstruction of justice investigation involving Trump.
*August 31, 2017: Wall Street Journal reports that Trump’s lawyers met with Mueller several times, submitting several memos that Trump didn’t obstruct justice by firing Comey, and questioning Comey’s reliability as a potential witness.
This is an attempt to discredit Comey as a potential witness.
*August, 2017: (Politico) Trump tells Senator Thom Tillis he was unhappy with legislation he was working on with Democratic Senator Chris Coons that was designed to protect Mueller from an attempt to fire him. That legislation then stalls in the Senate after Mitch McConnell said there was no need to protect Mueller.
This is attempting to interfere with an ongoing investigation.
*Fall, 2017: The publication Foreign Policy reports that the White House turned over records to Mueller indicating that White House Counsel Don McGahn researched federal statutes regarding lying to investigators and violations of the Logan Act during the first days of the Trump presidency.
The Logan Act is a United States Federal Law that criminalizes negotiations by unauthorized persons with foreign governments having a dispute with the United States.
*October 28, 2017: CNN reports that a federal grand jury has approved the first criminal charges in the Mueller investigation.
*October 30, 2017: Mueller announces criminal charges against Trump campaign chairman Paul Manafort, and business associate Rick Gates, centering on money laundering and secret lobbying. Both men plead not guilty to the charges.
Mueller also announces the unsealing of a plea agreement with former Trump foreign policy advisor George Papadopoulos, who has been under arrest and cooperating with the Mueller investigation since July 27. Papadopoulos had pled guilty to lying to the FBI regarding his contacts with Russian officials while working with the Trump campaign.
*October 30-31, 2017: Trump attacks the charges against Manafort on twitter and calls for the FBI to focus on Hillary Clinton and the Democrats, then calls Papadopoulos a young, low-level volunteer in his campaign. “The Fake News is working overtime. As Paul Manafort’s lawyer said, there was “no collusion” and events mentioned took place long before he came to the campaign. Few people knew the young, low level volunteer named George, who has already proven to be a liar. Check the DEMS!”
George Papadopoulos was actually a foreign policy advisor during the Trump campaign, was present at national security advisory meetings, and had multiple contacts with the Russians on behalf of the Trump campaign.
*December 1, 2017: Flynn pleads guilty to misleading (lying) to federal investigators about whether he had contact with Russian officials about lifting sanctions levied by the Obama administration for Russian interference in the 2016 election, once Trump was in office.
*December 2, 2017: The President sends a tweet that seems to imply that he knew Flynn had lied to the FBI (committed a crime) before he pressured Comey to go easy on him.
Trump: “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide.”
Within hours of this tweet, news reports emerge that Sally Yates had informed the White House counsel Don McGahn that Flynn had made false statements to the FBI back in January, and that McGahn had passed that information to the president.
Trump tweets: “So General Flynn lies to the FBI and his life is destroyed, while Crooked Hillary Clinton, on that now famous FBI holiday “interrogation” with no swearing in and no recording lies many times…and nothing happens to her? Rigged system, or just a double standard?”
John Dowd, Trump’s personal lawyer attempts to deflect this admission by claiming that he wrote the Flynn tweet himself.
*December 3, 2017: Trump’s personal lawyer John Dowd confirms to the Washington Post that Trump knew in January that Flynn had lied, and that McGahn had passed Yates’ information to the President.
In tweets, Trump denies that he asked Comey to drop the Flynn investigation and attacks the integrity of the FBI investigation. “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!” and “Report: ANTI-TRUMP FBI AGENT LED CLINTON EMAIL PROBE” Now it all starts to make sense!”
*December 4, 2017: Trump’s personal lawyer John Dowd claims the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.”
*December 21, 2017: FBI Director Andrew McCabe testifies in a closed-door session before the House Intelligence Committee, confirming that Comey did talk with him about his conversations with Trump soon after they happened.
*December 23, 2017: Washington Post reports that McCabe plans to retire early in 2018 when he becomes eligible for pension benefits. Trump tweets a veiled threat to McCabe: “FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!”
*December 24, 2017: Trump renews his attack on McCabe’s wife in tweets.
*December 26, 2017: Trump accuses the FBI of using a “pile of garbage” dossier as the basis for its Russian investigation, and tweets direct quotes to that effect from the @foxandfriends broadcast that same day.
*December 30, 2017: The New York Times reports that it was actually the actions of George Papadopoulos that triggered the Russian investigation.
*January 24, 2018: Trump tells reporters he is looking forward to testifying under oath in response to questions from Mueller’s investigation. “There’s been no collusion whatsoever. There’s been no obstruction whatsoever, and I’m looking forward to it.”
When the suggestion was made that he might have obstructed justice, he said what he did was fight back, then complained that people say, “Oh, well, “Did he fight back?”…You fight back, “Oh, it’s obstruction.””
Later the same day, White House lawyer Ty Cobb said that the President was speaking hurriedly and meant to say only that he was willing to meet with the Special Counsel’s team.
John Q. Barrett, law professor at St. John’s University, and former associate special counsel in the Iran-Contra affair, says that Trump’s “reflex is to strike back or to react to shut down questioning, inquiry, investigation, actors that aren’t under his control…It’s an obstruction reflex, is really what it seems to be. (Atlantic)
*March 16, 2018: Trump fires FBI Deputy Director Andrew McCabe, late on a Friday night, just 26 hours before he would have qualified for a full federal pension. McCabe finds out about his firing from someone close to him reading him the press report over the phone.
This could be seen as a veiled threat to other potential witnesses – there will be consequences for disloyalty.
*March 18, 2018: Trump sends a string of tweets attacking McCabe, former FBI Director Comey, and special counsel Robert Mueller. Trump had never attacked Mueller by name in a tweet before this date.
Also raises the fears for Trump staffers that Trump would take the extreme step of firing Mueller, a move that both Democrats and Republicans say would spark a constitutional crisis.
Andy Wright, professor at Savannah Law School said that the escalation into open warfare against the special counsel by name follows a ten-month effort to impede or stop the FBI and Mueller’s investigations. “I don’t know what happens next because we’re in uncharted territory.”
So is Trump guilty of obstruction of justice?
Bruce Green, law professor, Fordham University and former associate counsel in the Iran-Contra affair, says, “The firing of Jim Comey, standing alone, was ambiguous.” Trump might have fired him because he was unqualified. “But if it’s true that Trump also tried to fire Robert Mueller, innocent intent becomes less plausible…the inference of corrupt intent becomes stronger still. (Politico)
Another problem for Trump is his attempts to influence the investigation, his penchant for venting against it both privately and publicly, and his inability to control it. This increases the chances that his aids and staff have evidence that would provide insight into Trump’s state of mind, necessary for the obstruction charge: recollections, notes, texts, emails, etc. (Politico)
If Trump claims the investigation was bogus, a prosecutor would anticipate that by inferring Trump’s intent from the evidence. For example, last spring when Trump asked Sessions if the government would drop the criminal case against Sherriff Joe Arpaio, Sessions said that would be inappropriate. So Trump let the case go to trial, then pardoned Arpaio after the conviction. (Politico)
Mueller could argue that this suggests that Trump is serious about shutting down investigations of his friends. It establishes a pattern of behavior.
The New York Times reported that when Trump got mad at Sessions after Mueller was appointed, and accused him of disloyalty for recusing himself, that could be argued that Trump’s intense anger was due to his fear of the investigation and his desire to impede it.
Trump’s lawyer John Dowd has claimed that the President “cannot obstruct justice.” But Norm Eisen, chief White House ethics lawyer from 2009 to 2011, and Noah Bookbinder, former federal corruption officer, say, “There is mounting evidence that the president has been acting with improper and therefore criminal intent.”
One of the key elements of obstruction of justice is corrupt intent. If Trump knew that Flynn lied to the FBI, it undercuts the argument that his statements to Comey, and the firing of Comey, were done for innocuous reasons.
Eisen and Bookbinder’s point is that the President’s knowledge of Flynn’s crimes, and his lengthy pattern of obstructive conduct desperately attempting to get people to impede or stop the investigation (FBI, Congress), suggests culpability.
Kathleen Clark, an expert on legal ethics and professor at Washington University in St. Louis, says that Dowd’s “argument didn’t work for Nixon, and Dowd’s new formulation of it won’t work for Trump.” She says “the president has the power to fire an FBI director, but does not have the authority to do it if it would violate the law.”
The Articles of Impeachment presented against both Richard Nixon and Bill Clinton both cited obstruction of justice as reasons why they should be removed from office.
The first article of impeachment adopted by the House Judiciary committee in the case against Nixon charged him with having obstructed justice through “a course of conduct…designed to delay, impede, and obstruct the investigation” into Watergate and to “cover up, conceal and protect those responsible.”
Others make the argument that the president can legally obstruct justice, as the chief law enforcement officer in the country, and probably can’t be prosecuted until he exits office voluntarily or is force out by Congress. (Mark Zaid, national security attorney in Washington, D.C.)
But according to Josh Blackman, professor at South Texas College of Law and adjunct scholar at the Cato Institute, “There are a series of hurdles” to trying Trump for obstruction of Justice.
First, Blackman argues, Mueller lacks the authority to unilaterally seek an indictment against the president. He can only make a recommendation to the Justice Department about whether criminal charge should be sought.
He goes on to say that if Mueller recommends criminal charges, the decision to proceed falls on Assistant Attorney General Rod Rosenstein. If Rosenstein disagrees, it is the end of the road.
If Rosenstein agrees, and seeks indictment, Trump could order Sessions to fire Rosenstein. If Sessions refused, Rosenstein would be elevated to Acting Attorney General, and Trump could then fire him.
Or Trump could resign, like Nixon, avoiding the question of indicting a sitting President.
So, Blackman argues, there are no scenarios where a federal prosecution of Trump could proceed while he is office, and all of these processes presume a sitting President can even be indicted for a violation of federal law. He says it has never been tested.
John Culhane, professor at Widener University Delaware Law School says, “The task of determining whether Trump acted improperly ultimately falls to the House.” If the president obstructs justice, the Constitution and the public’s confidence in the government requires a remedy.
The impeachment process is that remedy. The job of deciding, ultimately, whether Trump acted improperly by pressuring Comey, and much more, falls to the House of Representatives.
Which is currently controlled by the Republicans.
*Update: 3.28.18: The Washington Post reports that the president’s lead lawyer, John Dowd told attorneys representing Paul Manafort and Michael Flynn last year that Trump might be willing to offer a presidential pardon.
Trump had asked his advisors about presidential pardons back in July of 2017.
Dowd insisted that he did not raise the issue of pardons with lawyers representing the two men.
Legal experts say that floating the possibility of a presidential pardon to people under investigation can be viewed as a criminal effort to obstruct justice. This would be considered an incentive for witnesses not to cooperate.
***timeline of obstruction article by slate.com:
*** other articles of interest: