Below is my column in The Hill newspaper on the known basis for an obstruction case against President Donald Trump. While much more has been learned since the appointment of the Special Counsel, there remains considerable doubt about a prosecutable case for obstruction.
Here is the column:
“The wicked flee when no man pursueth, but the righteous are bold as a lion.” Like all proverbs, this well known saying is often better understood in the abstract. Sometimes it is difficult to distinguish between “flight” and “fight.” From the perspective of his critics, President Trumpevidences guilt at every turn and in every tweet. For Trump, his moves are merely the result of being a “counter puncher” who attacks when he is threatened.
The question of perception goes directly to the heart of the obstruction allegations leveled against him. Indeed, for someone approaching these questions as a criminal defense lawyer, disputes over perception can be the death of a prosecution. Crimes must be proven beyond a reasonable doubt. They cannot be purely matters of perception. That has been the case regarding the obstruction allegations made against the president.
I recently explored the status of the public evidence of collusion based crimes. It is now time to look at the status of obstruction of justice from information revealed in court filings, congressional investigations and witness statements. While special counsel Robert Mueller could offer new incriminating evidence in his final report, the evidentiary record remains strikingly anemic as a basis for criminal obstruction charges.
The issue is not optics but intent. Trump could not have created worse optics in his various actions and comments. He also acted inappropriately i reportedly pressuring officials to intervene either with Comey or to push to clear his name publicly. One of the most inappropriate moments came when Trump reportedly pushed Comey to go easy on Trump’s former National Security Advisor Michael Flynn. However, that incident is an example of how the same conduct can have widely different explanations. Trump can easily defend his statements as showing compassion for someone who had already resigned in disgrace. He was not reportedly asking for an end of the investigation.
Thus far, obstruction remains the bomb that never went off. Mueller has not been fired, Acting Attorney General Matthew Whitaker did not move to limit the investigation, and Trump has not pardoned key witnesses or associates before they could cooperate or testify. More importantly, any obstruction case must meet the elements of an obstruction crime, which usually involves obstructing a grand jury or destroying evidence. As I previously discussed, there are significant problems in shoehorning these facts into the criminal code and serious implications of stretching such definitions for future cases. Here are the most cited obstruction theories.
The firing of the FBI director
Before Trump fired FBI Director James Comey, some of us opposed the appointment of a special counsel absent a cognizable crime. The firing in May 2017 changed all of that. The result was predictable and catastrophic. Many of us, including some Republican congressional leaders, called for a special counsel to open an investigation. The president had supplied the very criminal allegation that had been missing in the collusion theories.
However, the obstruction theory tied to firing Comey has not improved with time. There were ample independent reasons to fire him. As the memorandum by Deputy Attorney General Rod Rosenstein had detailed, Comey was denounced by several former and current Justice Department officials for his poor judgment and violation of standard FBI procedures.
While former FBI Deputy Director Andrew McCabe wrote that Rosenstein felt pressured to write the memorandum, Rosenstein has stood by his assessment of Comey and the basis for his termination. Moreover, after the firing, Trump took no action to stop or curtail the investigation and appointed Christopher Wray, who is widely praised for his independence.
Russian meeting and interview
The political damage from firing Comey was magnified the next day when Trump met with Russian officials in the Oval Office. This was followed by perhaps the most disastrous press interview in our modern presidential history. The May 2017 interview with Lester Holt of NBC News would do little for an obstruction case. Yet, Trump began by giving his reason for firing Comey as a “grandstander” who left the FBI in “turmoil.” It was only later that Trump made the infamous statement, “I said to myself, I said, you know, this Russia thing with Trump and Russia is a made up story.”
However, Trump already said that he had made up his mind on Comey. He declared, “I was going to fire Comey knowing there was no good time to do it.” Indeed, he said he knew that the timing “will confuse people” and that he might “lengthen the time” of the investigation. These comments can be defended as obfuscation rather than obstruction. What Trump said to Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak present more of problem. He told the Russian diplomats the very next day after firing Comey, “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That is taken off.”
There is no question that Trump tied his firing of Comey to his desire to reduce pressure from the investigation. However, the statement would not be difficult for a defense attorney to address. Trump met with the Russians to restart relations between the United States and Russia. He can easily claim that he was trying to show that he would not be negotiating from a weak or vulnerable position. Trump will likely claim that he was assuring the Russians that he could cut any deal and was not in anyway hamstrung in going forward. Moreover, if Trump had sought to end the investigation, he failed to act along those lines in appointing the successor to Comey.
The Trump Tower statement
The Trump Tower meeting statement drafted by the president on Air Force One was yet another example of taking a hammer to his own head. He falsely suggested that the meeting was arranged to discuss the ban on Russian adoptions. It was, in fact, arranged for the express purpose of getting some promised evidence of criminal conduct by Hillary Clinton.
The statement, however, does very little to show obstruction. First, the question is, to obstruct what? The meeting took place in June 2016, long after the Russian email hacking operations were launched against the Democrats. It has no apparent connection to any collusion. Second, it does not constitute a crime to receive this kind of evidence from foreign sources or governments. No such evidence has been reported.
Finally, and most important, the obvious defense and likely truth is that Trump was “spinning” a negative story. He is not the first president to do so. The falsehood was the description of the purpose rather than the content of the meeting. Witnesses agreed that it ended shortly after it began when it became clear that the Russians only wanted to talk about adoptions. That is not worth much as evidence of obstruction of justice.
The tweets and attacks
The final evidence often cited is the litany of hostile and conflicting public statements made by Trump on Twitter and in interviews. Trump seems to encourage witnesses like Paul Manafort, Michael Cohen, and Roger Stonenot to cooperate with Mueller while attacking every negative disclosure. Trump has continued to make damaging comments despite the universal view among his lawyers that he only harms himself and his administration.
The problem is that these controversial statements are his political modus operandi, not just with the Russia investigation but on trade, immigration, foreign policy, and virtually every sensitive topic in the news. Trump also believes in a “deep state” conspiracy against him, a suspicion fueled by internal FBI emails showing open bias against him and his election. Trump proceeded to counter punch his way into an obstruction investigation, but these public comments would make for a poor prosecution against him.
For now, the obstruction theories against the president far outstrip the available evidence of the crime. Yes, Trump could not have worked harder to build a federal obstruction case against himself. Yet, as baffling as his conduct and comments have proven over the course of this investigation, Trump appears more guilty of obsessive rather than obstructive conduct.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.