Since the release of Special Counsel Robert Mueller’s report last week, things have been murky. The report didn’t explicitly reveal if federal investigators thought Trump committed obstruction of justice, which has left partisan and nonpartisan media to attempt to fill in the gaps themselves.
Since last week, conservative writers (and Trump himself) have circulated this quote from Jesse Watters in which the Fox News host said, “Trump was being framed and decided to fight back. That is not obstruction.”
But Watters and other partisan talking heads can’t so easily explain for us what obstruction of justice is in the first place.
This is a big problem with the discourse surrounding the Mueller investigation. We’re not working from a common definition of what obstruction is, not by a longshot. Wildly different understandings of obstruction are emerging in partisan and nonpartisan media, and few seem to match up.
Without some common, working understanding of what obstruction actually is, we can’t evaluate Trump’s actions outlined in the Mueller team’s report.
How did the Mueller investigation define obstruction of justice?
Mueller’s team spent a good deal of the report explaining the specific laws and other legal precedents they were drawing from to create a working definition of obstruction. (You can read the main statute they relied on here under Section 1512(c)(2).)
Under that statute, obstruction includes conduct that “corruptly” influences or impedes an official proceeding – or attempts to do so. In Trump’s case, the government proceeding would be the Russia investigation.
The Mueller team outlined some criteria for obstruction-of-justice charges, including:
- Intent. Citing a legal dictionary, the report said that obstruction crimes must have “a concrete showing that a person acted with intent to obtain an improper advantage for (him)self or someone else, inconsistent with official duty and the rights of others.” In other words, prosecutors would have to prove that a person really intended to influence an official proceeding in order to prosecute them for obstruction.
- An official proceeding. To qualify as an obstruction offense, the behavior in question has to be connected to an official government proceeding, like an investigation. This point comes from a litmus test that the Supreme Court has used in previous cases to determine if a crime qualified as obstruction.
- It’s likely to work. This is a little harder to explain, but obstruction crimes must have a reasonable chance of success. Deeds that are very unlikely to influence a proceeding don’t count as obstruction crimes. This point also comes from the Supreme Court’s litmus test.
After running through these points, Mueller’s team wrote that in light of the obstruction statutes out there, “an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.”
In other words, the investigators disagreed with the notion that Trump’s behavior failed to rise to the level of obstruction of justice. This kind of verbal jiu-jitsu is just one example of the lengths taken by the Mueller team to avoid saying that Trump’s behavior indeed constituted obstruction of justice.
What are some examples of obstruction cases involving other presidents?
The House of Representatives impeached President Bill Clinton on a charge of obstruction of justice in 1998. The House accused Clinton of witness tampering, alleging he had told intern Monica Lewinsky to submit a false affidavit in a lawsuit and that he had attempted to influence his secretary’s testimony. The Senate acquitted Clinton of obstruction, although a group of Republicans, including Senate Majority Leader Mitch McConnell (R-Kentucky), did not vote to acquit.
In 1974, the House Judiciary Committee approved articles of impeachment against President Richard Nixon for obstruction of justice and other charges. The committee alleged that Nixon had interfered with the activities of federal agencies, including the FBI and Department of Justice, by covering up the Watergate burglary and other potential offenses.
Contact Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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