Mueller Hires Justice Official With History Of Arguing For Expansive Interpretation of Obstruction of Justice

440px-Director_Robert_S._Mueller-_III-1There was an interesting development late last week when Special Counsel Robert Mueller hired Michael Dreeben, a deputy in the Office of the Solicitor General, to work part-time with his staff.  The addition of Dreeben added someone with considerable criminal and appellate experience. However, Dreeben’s background also contains an interesting item that bears directly on the potential case against President Donald Trump.  Dreeben argued in an unsuccessful appeal of the prosecution of Arthur Anderson where the Justice Department advanced a sweeping interpretation of obstruction of justice — an interpretation that I criticized as wildly overbroad.  The interpretation resulted in a unanimous rejection of the Supreme Court.  Given the call for a charge of obstruction against Trump (and the view of some of us that there remains considerable statutory barriers to such a charge), Dreeben’s addition should be a concern to the Trump defense team.

Arthur Anderson LLP v. United States, 544 U.S. 696 (2005), involved the firm’s conviction related to the Enron scandal.  The Justice Department alleged that the firm (which was Enron’s accounting firm), instructed its employees to destroy documents after they were aware of the investigation into Enron by the Securities and Exchange Commission.  The firm was convicted  under 18 U.S.C. § 1512(b)(2)(A) and (B) for the crime of “knowingly … corruptly persuad[e] another person … with intent to … cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.”  However, the court instructed the jury that they could convict  “even if petitioner honestly and sincerely believed its conduct was lawful.”  The unanimous court, in a decision by Chief Justice William Rehnquist, disagreed and reversed the conviction.

What is particularly notable about the decision is that we have discussed the key standard of  “knowingly … corruptly persuade” in the context of the claims against President Donald Trump. I have said that I do not see a serious foundation for an obstruction charges due to a couple of missing elements, including the intent element for seeking to corruptly influence the investigation.  The Court ruled that “[o]nly persons conscious of wrongdoing can be said to ‘knowingly corruptly persuade.’ ”

440px-Grose-Francis-Pavisors-and-Moveable-Tower-Assaulting-Castle-1812Given the current weak foundation for an actual charge of obstruction, the addition of Dreeben is all the more notable as someone who argued for a broader application of the crime — particularly in the reduction of intent standard.  Dreeben’s selection is a lot like seeing an opposing kingdom hiring designers of seige or breaching towers in the Middle Ages. It is hard not to assume that they are meant to overcome your walls of defense.  Indeed, from the perspective of defense counsel, bringing in Dreeben at this point is like sitting outside of the Trump castle building a breaching tower and insisting that there is nothing to see here . . . it is just for the view.

Dreeben also brings experience in the preparation and preservation of appellate issues. In an investigation that could raise novel constitutional issues, that experience could be quite handy.

These types of additions to Mueller’s team can be overplayed of course.  However, Mueller himself was not likely viewed as a neutral choice by Trump lawyers.  He shares a history and values with Comey, who followed him at the FBI. They have the same DNA. In comparison, he shares about as much in common with Trump as a mule skinner.  Mueller is an icon at the FBI and Trump is widely viewed as challenging the FBI’s integrity and independence.  That is why the addition of attorneys like Dreeben is likely to be viewed in the most ominous light.

66 thoughts on “Mueller Hires Justice Official With History Of Arguing For Expansive Interpretation of Obstruction of Justice”

  1. “Fake News” of a “Fake Impeachment.”

    The is no evidence of anything and all relevant officials have said that.

    The judicial branch has become the legislative branch as the Imperial Judiciary.

    The legislative branch has turned itself into a court.

    The Constitution mandates that a number of judges and justices be impeached for usurpation.

    “Overreach” is an egregious constitutional crime of high office – a coup d’ etat.

    The inmates have taken over the asylum.

    Where in the world are the “constitutional scholars” on these issues?

    Nature abhors a vacuum.

    Without a vigorous, assertive legislative branch, America is lost.

    Why don’t Paul Ryan and Mitch McConnell exert their power as conservatives and constitutionalists?

  2. Trump has ZERO concern about any bogus claims of “obstruction of justice.” There WASN’T any obstruction of justice. ZERO. ZILCH. NADA. NIET, ZIP. That’s zero, as in “0” or zero squared.

    Nor does Trump have the slightest concern over the hiring of Michael Dreeben. Dreeben’s actions in the Enron fraud and corruption case to seek prosecution of auditors Arthur Andersen for their willful destruction of documents was commendable and auditors are given much too liberty to defraud the public when they lie about a company’s financial records and statements. If anything, after all is said and done and the leftists finally are forced to give up their fantasy that Trump obstructed justice, the hiring of Dreeben will only strengthen Trump’s position.

    By the way, as a matter of trivia, many don’t know this but Arthur Andersen–the man, not the firm–was one of the few auditors pushing for stronger ethics in the auditing business, unlike his peers, who preferred the loosey goosey audit approach. Of course, the partners who took over long after his death felt very differently. Arthur Andersen had the misfortune of getting caught lying. Today, Price Waterhouse, KPMG, Deloitte, and Ernst & Young carry on the great auditing tradition of lying for their clients. Here’s a photo of a KPMG partner taking an envelope full of cash. He got caught, but others have immediately taken his place. The auditors learn from their mistakes.

  3. If Trump has tapes that will clear him, release them. Comey enthusiastically supported their release. Of course, we know that Trump is lying as usual and that his tweet about fake tapes was designed to intimidate Comey. And it was an epic fail.

    And as for the new, and ridiculous, GOP talking point that Trump “is new to this” governing thing. He ran his entire campaign touting that he knew more than the generals, he alone could fix it, he was really smart, etc. AND he spent a lot of time criticizing [rightly] the Lynch/Clinton meeting on the plane. He knows exactly what he’s doing which is why he made sure to talk to Comey alone.

    If he and his motley crew are innocent, then they should stop acting like they are seriously guilty.

    1. Come on SWM, JT always admonishes against besmirching an attorney based on who they represent.

      1. On the Turley blog, Joe is just Joe — or should be — but leave it to some to try to stir the pot.

          1. SWM has a sense of humor and intellect. Anonymous is 0 for 2 in those categories.

  4. Only Congress can impeach the President. Depending on how badly the 2018 midterms go for Republicans what Mueller can do is provide the political will and the political cover for Congress to impeach and remove Trump. And worse case, if Pence as the head of Trump’s transition is indicted as well, Paul Ryan becomes President. So really, its win-win for Republicans either way.

  5. Inside info like this, is one of the reasons I cam to this great blog. This case should be titled, Deep State Elitists v Trump.

      1. SWM, LOL! Any supporter of Lady Macbeth/Hillary is no lover of the rule of law. You are an elitist lover.

      2. Trump versus the rule of law? What law would that be? Winning the election?

    1. The real story SHOULD be Lynch. And Bill Clinton, whose meeting with Lynch was to impact election (why has no one said this?). The American voter decided who should be President. Democrats have been trying to change that in any way possible. Voters should punish anyone running as a Democrat in 2018 for wasting time and money on a witch hunt where the witch is one of there own (Waters). Watching the Comey meltdown, along with Hillary’s “I should have won” interviews, and Maxine’s impeachment pleas is just sickening. Has anybody in DC read the Constitution?

      1. Yes, the American voter did decide who should be President- Hillary Clinton by nearly three million votes. But since we don’t have a system where everyone’s vote is equal but instead a system where the votes of some count more than others, Trump became President despite another candidate getting more votes.

        1. L Silver – our very wise founding fathers decided that an electoral college was the way to go. It is up to the state how the votes are split. Some are winner take all, some are by percentage. Some states do not allow write-ins unless they have qualified for the ballot.

  6. For the record – It is Andersen – SEN with an E
    He was Norwegian NOT Swedish

  7. Cloud 9 today has a new item which says that Trump has a girlfriend at Trump Tower named Keegan. She is 19 years old. She has a one year old child named Donald. More later.

  8. Some people just like to hire their friends when the get a new job. Those people are loyal to them.

  9. How does “However, the court instructed the jury that they could convict “even if petitioner honestly and sincerely believed its conduct was lawful” relate to “ignorance of the law is no excuse”, a principle I’ve long thought could be unfair and lead to abuse.

  10. Why discuss Flynn at all with Comey when there are active cases involving IS in all 50 states.

    “I hope” = euphemistic obstruction.

  11. Why would Trump’s doj appoint a buddy of comey as special prosecutor , to reward Comey’ obnoxious and corrupt behavior ?

  12. Generally speaking, the law should not criminalize acts where the person(s) doing those acts has a good faith belief that they were acting properly. The key to this concept, of course, is that there must be a GOOD FAITH belief that what was done was proper.

    In the tax world, there is a Supreme Court case called Cheek which effectively holds that a person who has a good faith, but erroneous, belief that they were not required to file income tax returns cannot be convicted of tax evasion. Of course, a defendant who invokes this type of Cheek defense has a major dilemma. Normally the only way the defendant can get evidence of their good faith belief in front of the Jury (or Judge) is to take the stand and testify, thereby allowing the prosecution to cross examine them.

    If Trump were ever to be charged criminally and then decided to defend against the charges on the grounds that he did not believe what he did was wrong, he would almost certainly have to testify at trial. And the Jury (or Judge) would have to decide whether his stated belief was held in good faith. This would open up all sorts of ways for the prosecution to cross examine Trump. It would be an extremely dangerous move from the standpoint of a criminal defense attorney.

    It was foolish for prosecutors in Arthur Anderson to argue that you could be convicted even if you had a good faith belief that what you did was not wrong. And it would be equally foolish make the same argument in pursuing criminal charges against Trump. Let him get on the stand and testify. And see if his testimony withstands cross-examination. That is what trials are all about.

    I cannot agree with Prof. Turley that there is a “weak foundation for an actual charge of obstruction.” Much of the available evidence is not known to us. Indeed, without the testimony of Flynn, Manafort, et al,, it is possible, even likely, that much of the key evidence is not even known to prosecutors yet. That is why there is going to be an investigation.

    It is accurate to state that publicly available evidence is inconclusive and that we don’t know all of the evidence. That is all, nothing more and nothing less.

    It is also accurate to state that Trump is his own worst enema, er, enemy. His son is a close second, at least this week.

    As for those who hang their hat on the fact that Comey said that Trump was not a target of the investigation, that means very little. He could be a “subject”, which is a person of interest who has not been targeted by prosecutors. And even if he was not a “Target” or a “subject” when Comey made his remarks, that could change, particularly if Flynn or Manafort decide to sing for their supper.

    1. You said, “I cannot agree with Prof. Turley that there is a “weak foundation for an actual charge of obstruction.” Much of the available evidence is not known to us. ”

      No. You have your cart before your horse. There is not even a lucid allegation of what Trump or his campaign may have done wrong, besides some sort of foggy “collusion” claim/

      Colluded to do what? Was Russia going to pay for Uber drivers to take Republican voters to the polls?

      Was Russia going to trap Hillary in a honey pot operation?

      Was Putin going to “collude” with Trump and say “Lock her up!”

      You know, the Democrats can’t even articulate what Trump/campaign did. Sooo, how can you blame a “lack of evidence.” If for example, the above Uber claim is the charge, you could then say, “Well, Uber’s records have been subpoened, but not yet received.” Then it might make some sense to say, “we don’t have the evidence.”

      But NOT when you don’t even have an articulable claim. Then, the “search for evidence” is just a fishing expedition. For Marlin, at the North Pole, through a hole in the ice.

      Squeeky Fromm
      Girl Reporter

      1. Squeeky, we are wittiness to a bloodless coup. The left will not give up on President Trump, it will be one thing after another. The Republicans have been such a disappointment having no balls to fight back. They have the power go after Obama, Lynch, Clinton, Lerner. Do exactly as the Dums are doing lie, innuendo, cheat, attack on all fronts.

  13. Barr recounts Robert Mueller as saying,

    “Bob, don’t go too hard on these guys. We know most of them, and they’re good people.”

    According to former Georgia Congressman Bob Barr, now special counsel Mueller said nearly the same thing to him during the 1995 Congressional investigation into the 1993 stand-off in Waco, Texas that resulted in the deaths of 76 members of the Branch Davidian cult.

    Barr, writing in his 2011 book, “The Meaning of Is: The Squandered Impeachment and Wasted Legacy of William Jefferson Clinton,” recounted a phone call with Mueller, who was then working at the Justice Department, in which he asked Barr not to “go too hard on these guys.”

  14. Constitutional law professor Elizabeth Price Foley –

    “If the American people are unhappy with the way Trump acted,” Foley said, “their two options under our constitutional system are to push for impeachment or to vote somebody else into office in 2020.”

    “To the extent that people want try to make this obstruction of justice, there’s a million different layers why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter,” Foley said. “But this point particularly about a ‘corrupt intent’ is even worse. Because think about it, the president also has the authority under Article II [of the Constitution] to pardon people, but we don’t say for example that the president can’t pardon a certain person because he has a corrupt intent, he likes the guy he’s known him for a long time so therefore he can’t pardon him.”

    “The pardon power like the power to head the investigative, or the rest of the executive branch like the FBI, like the DOJ is a plenary discretionary authority of the president. He can pardon anybody for any reason he wants, corrupt purpose or no, and he can direct the investigation or non- investigation corrupt motive or no,” she added.

    “You don’t put discretionary limits on constitutional authority ap and if you do you invite Article III non-elected non-accountable judges to second-guess the president’s authority. You never want to have a constitutional regime that sets up that way. We the people can either not vote the president in or we can impeach him, those are the political pushback mechanisms.”

  15. “Dreeben’s selection is a lot like seeing an opposing kingdom hiring designers of seige or breaching towers in the Middle Ages. It is hard not to assume that they are meant to overcome your walls of defense.”

    Mueller is another Clinton acolyte ala Comey. He’s been sent in by the Deep State to do a hatchet job on Trump. I’m no fan of Trump–but we’re watching the Oligarchy’s coup d’état unfold before our very eyes.

    People can tell their grandchildren that they saw the end of the Rule of Law & even quasi-Democracy in the USA. Perhaps next they’ll be telling us how lucky we would be to have Hillary crowned as Queen.

    A source on the danger of hagiography towards US Intelligence

    1. Yep. But what they dont realize is that there is millions of armed Trump voters ready to take them out if they try to overthrow Trump

        1. I assume they mean the opposition to Trump. This is like fishing in a pond with no fish! Public opinion will begin turning against the Democrats as reports of more jobs, a solution to health care and Tax Reform get going. We saw the violence of the Left after the election. Violence from the Right would be more frightening.

  16. Mellow talk fantastic! Gives me opportunity to advise and listen and learn from bright millennials got 2 wonderful site, mr. TURLEY! I’m 63 have great respect for you! As far as DJT, after what he’s accomplished, I wouldn’t worry about a stupid “tape”, being found anywhere, even if there was one!🤣👨😎🇺🇸

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