President Nixon’s White House counsel John Dean claimed that if the Trump administration leaked questions from special counsel Robert Mueller it could qualify as obstruction of justice. Once again, I disagree with such sweeping interpretations of the crime of obstruction of justice. Leaking such questions or topics would not be a crime under any case that I am aware of in defining the crime of obstruction.
The New York Times revealed Monday that it had a list of nearly 50 questions Mueller would like to ask Trump as part of the investigation. Dean, a CNN contributor, stated that “The very fact that the questions are out there, my first reaction, suggesting it could be an act of obstruction to just have released these questions.”
I cannot see the basis for such a claim. These were topics discussed between prosecutors and a subject’s counsel. There is no nondisclosure agreement binding a subject who testifies in a grand jury or is interviewed by prosecutors. If that could be the basis for obstruction, prosecutors could silence a host of individuals by simply interviewing them or raising a variety of topics.
I have previously criticized Trump’s critics for continually downplaying the elements needed to establish crimes like obstruction. It creates a false impression for the public about the underlying facts and relevant legal analysis. As I discussed today, leaking these questions could very well be a violation of legal ethics, but I do not see the basis for an allegation of obstruction.