The White House / Flickr trump waving plane...
The White House / Flickr

The leaders of the Senate Intelligence Committee were careful to say that charges of collusion between the Trump campaign and Russian officials are still on the table. Special Counsel Robert Mueller has been collecting financial records that connect members of the campaign to Russian oligarchs. The number of instances in which members of Trump’s campaign, transition team, and White House staff failed to disclose meetings with Russian officials and oligarchs is still growing.

But it may not be necessary to prove a single actual connection with Russia in order to direct Trump himself to the door. A team from Citizens for Responsibility and Ethics in Washington, writing for the Brookings Institute, has assembled a detailed analysis for a case against Trump on the basis of obstruction of justice.

President Trump’s firing of Comey and the subsequent revelations about President Trump’s earlier exchanges with Comey while he was FBI Director raise the question of whether President Trump obstructed justice by endeavoring to impede those investigations. In June, press reports indicated that Special Counsel Robert Mueller is indeed investigating the very question of whether President Trump obstructed justice. Mueller has since impaneled a grand jury in Washington D.C., issued subpoenas, and has begun seeking interviews with current and former White House officials.

In order to prove a charge of obstruction, it’s not necessary to prove an underlying crime. After all, a successful use of obstruction may be the factor that allows the removal of evidence, the suborning of witnesses, and the the obfuscation of events. Obstruction may work … and is no less a crime when it does.

The case built by CREW is detailed, including both witness testimony and media accounts, and compares Trump’s actions to those of people previously prosecuted successfully in cases of obstruction. It includes not just the likelihood that the known facts are sufficient to levy a case against Trump on such a charge, but the possible ways it might proceed.

These options include referral of the case to Congress, indictment of the president, holding the case pending removal of the president, and closing the case without indictment. 

The completed paper is available as a pdf. The conclusions fall definitely on the side that Trump’s actions surrounding Comey alone are sufficient to mount a textbook case of obstruction.

Attempts to stop an investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the type of acts that have frequently resulted in obstruction convictions, as we detail. In addition, to the extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges.

CREW goes through the grounds that many Republicans have used to defend Trump’s actions, and the casual dismissal of potential obstruction charges by White House staff and quickly dispatch the general crop of excuses. Trump’s phrasing in his instructions to Comey, Comey’s actions following those conversations, and Trump’s subsequent firing of Comey all all reinforce the idea that obstruction took place.

The president’s legal authority to remove an FBI director is a red herring—at least insofar as it has been used as a blanket justification for the president’s actions.The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose. 

Their ultimate conclusion …

With that caveat, our review of the facts and the law leads us to the view that the president likely obstructed justice. Should that conclusion be borne out, we believe he will beheld to account under one or another of the vehicles we have outlined, for no one is above the law in our system. 

Those options definitely include impeachment, and the authors point out the case of a judge who was specifically impeached after his was found guilty of obstruction. They also examine how things might proceed in a rarely-considered option.

Although some commentators have argued that a president cannot be indicted in
office, the law is unsettled on that point. The Constitution is silent on the issue, the framers did not discuss it, and no Court has ruled one way or another. Although the Department of Justice’s Office of Legal Counsel (OLC) has twice opined that a sitting president may not be indicted, Special Prosecutor Jaworski and Independent Counsel Kenneth Starr—the individuals charged with investigating Presidents Nixon and Clinton—thought otherwise.

Impeachment. Indictment. Or possibly deferred charges that would be waiting for Trump when he finally stops taking his golf outings on the taxpayer dime. The authors lay out the case for each option, without really coming down firmly in any of these camps.

The lawyerly text provides few thundering lines or moments of drama, but it does lead to one inevitable conclusion.

[Trump’s actions] mirror typical obstruction behavior that many courts have held is the kind of conduct that Congress intended to criminalize when it enacted the obstruction statutes.

That’s if there were no actual connections to Russia. And there are actual connections to Russia.

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This is a Creative Commons article. The original version of this article appeared here.


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