The Case for Obstruction

This may have been the longest period of time I haven't blogged since I started in '06. Not positive. Just busy and trying to get everything done before a little deserved vacation in Alaska and have slacked off on my blog.

I'm considering in this post the case against Trump for obstruction. Congenitally unable to just start writing on my actual subject, I have to preface it with some comments (which I promise will not be long . . . I swear).

This post isn't about (mostly, anyway) the politics of the Russian Interference or special prosecutor investigation, although arguably, that may blend into defenses at some point if impeachment claims are brought or if a D president in 2020 (if that happens) decides to prosecute Trump (who will pardon himself and everyone he knows prior to leaving office, if he's smart). My personal feeling is that hatred (some of it deserved) and hysteria (not deserved) over Trump has led to opposition to him at a fever pitch at least since Nixon, if not including him. Yes, there has been unreasonable and usually partisan animosity previously displayed to almost every other president (I would say that relatively fewer people on the "other side" tended to hate Gerald Ford or George H. W. Bush), but it wasn't like this. Not even for Nixon, where there was much good reason for impeachment proceedings and his resignation, and they were - so far at least - more violent times. If you look at just one fact Mitch McConnell brought out that has, as far as I can see, been unopposed, it says it all. In Trump's first two years there were 128 cloture votes against Trump nominees whereas there were only 24 - just 24 - among Carter, Reagan, Bush 1, Clinton, Bush II and Obama nominees in the same two year period. And that animosity has led to the difficulty Trump has had in governing. I could go on, but that's not what this is about.

This post is also not about Russian collusion itself, a misnomer if there ever was one. Mueller's Report ("MR") put an end to the illogical and plain wrong notion that there was even such a thing as a crime of collusion. It was ridiculous that supposedly intelligent politicians and lawyers were arguing about this. There is a crime of conspiracy to commit a crime, but the report found neither collusion nor conspiracy with Russia and the Trump campaign. For some reasons that weren't very instructive to me, the MR chose to talk about "coordination" (also, though, the MR points out, not a crime) rather than "collusion." Whatever the proper word, it was concluded: "We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities."

And before you scream "But he didn't clear him," prosecutors don't clear people, any more than the NFL selects a "non-Pro-bowl" team. Prosecutors have to show reasonable cause to go forward in an investigation or arrest someone and then they have to prove guilt beyond a reasonable doubt. Comey was serverely criticized precisely for doing what prosecutors don't do - clearing Hillary Clinton.

As anyone who has been blessed by knowing about my political updates since Trump came on the scene politically (was it a decade ago?) knows, I didn't like him or think he was suitable for the presidency. I didn't vote for him. On the other hand, I don't think most of our presidents or candidates are suitable for the job and I do think in some aspects he's done a good job. But, that's not what I'm writing about either.

I did not rush to judgment on this. I've said almost since the onset of these claims that collusion wasn't a crime, that so far we hadn't really heard any facts which sounded like an actual crime and that it may be a political witch hunt, but, if the report comes to a fair conclusion, I could immediately change my mind. And, before coming to a conclusion about obstruction of justice, I read that part of the MR (as well as the general introduction) very closely and really thought about it. After reading the report, I did, naturally, confirm my expectation that there was no collusion/conspiracy/crime and that it was a witch hunt, for which I do not blame Mueller, but both Ds and Rs who voted for it. I have also stated that I do not like these special counsel statutes which, whatever the legal language used, appeared to be investigations into a person with the hopes of finding a crime, rather than having probable cause to think a crime was committed. That should never be permitted. The law should be severely limited to investigating only when probable cause exists, not just that a crime was committed, but that a certain person committed the crime. And, if determined during the investigation that the facts underlying probable cause were not true - the investigation should cease to exist.

I have had a generally good opinion about Bob Mueller for many years. Not that he was perfect. I thought he was too lackadaisical about the great abuse of National Security Letters when they were first available to the FBI, and that he was even pretending to try to rein them in. I had a similar or even better opinion about Comey, until he proved himself a self-promoting, to some degree dangerous and duplicitous director of the FBI, and really disappointed me. I also think because of the close relationship between Comey and Mueller, widely reported, Mueller may indeed have a conflict of interest which should have been addressed. If there is impeachment or future prosecutions, their friendship will become an issue. But, despite the pressure to find something against Trump, Mueller didn't yield to it and it appears kept a tight hold on his team in terms of not leaking.

I analyzed just one of the events that are being considered for obstruction and realize that is all I'm going to do and just use it to stand in for all of them for now, as they all seem to follow a pattern and suffer from many of the same objections. I'm doing it for the simple reasons that there is a similarity to the charges (Trump can't shut up) and no one would want to read anything as long as what would be necessary to analyze all of the claims (I have to wonder how many would read it even to right here). In the end, I didn't find any of Trump's acts considered to have risen to the level of obstruction, though a few gave me pause. None of it means I approve of the behavior of a president who seems like a jerk in so many ways. But, I will have more commentary on this at the end of this post.

Obstruction: I'm going to use the standards and facts used by the MR, with the exception that I think the MR may be wrong about one issue of law - and if it is not wrong, should be wrong.

The MR's standards: Here's a summary of the crime of obstruction and what the MR used as its standards. I am going to try to use common English words rather than the legally-schmegally words of the MR. In order to do that and keep this short, I have to leave out some definitions, like what "corrupt" or "witness tampering" legally means and rely on your common sense and general knowledge. But, I'll give you two important ones:

False Statements: It is a crime to lie about a "material" thing to a federal officer, and that usually means the FBI.  But, it also applies to congressional committees and subcommittees. The statement has to be false and the defendant had to know it was false and that it was a crime to make the false statement (which is why they tell you before you speak with them). The statement has to be actually false - if it is just misleading but technically true, it's not a crime.  And to be "material" it "must have a natural tendency to influence, or be capable of influencing, a discrete decision or any other function of the agency to which it is addressed." E.g., if the president lies about how many people were at his inauguration, it is not material to this investigation because it wouldn't influence it.  In the same way, you also can't lie in the same way to a grand jury or when testifying under oath. 

Obstruction of Justice: This is the most important definition for purposes of this part of the MR: The wrongdoer had to make an obstructive act with a corrupt intent which has some connection to an official proceeding; and there has to be criminal or corrupt intent. You can also be guilty of attempting obstruction and it can also be based on circumstantial evidence (you wake up in a field you took a nap in and find your face and upper body are soaking wet, but nothing else around you is. It's circumstantial evidence of the fact that someone poured water on you. If you wake up and everything is wet and there are puddles around, it's circumstantial evidence it rained). Circumstantial evidence can be very powerful (as my favorite American author wrote) like when you find a trout in your milk, but, also, it can be terribly misleading. Perhaps everything is wet because a damn broke or a river flooded. Perhaps there are underground sprinklers.

Trump's Hope about Flynn.

I'll tackle the part where the MR considers whether Trump's alleged statement to Comey that he "hoped" he would see his way clear to letting Flynn go during a private meeting is sufficient to bring charges against him for obstruction. 

The MR acknowledged that the president denied many of the underlying facts (that he asked that Comey go easy on or let Flynn go), but acknowledged privately that he brought up Flynn with Comey. The MR seems to believe Comey's version. Part of the reason for that seems valid, that other people remember Trump clearing the room to speak with Comey and Comey's statements about what Trump said and some other behavior by Comey was consistent over time (that is, he was consistent in his story about what Trump said to him). Fair enough. But, I do not find Comey's own notes and testimony persuasive myself any more than I find Trump's denials persuasive. In fact, it is for me a sign of conflict that Mueller does not list some reasons we might doubt Comey - his extremely controversial behavior with the Clinton investigation, his obvious dislike of Trump, the fact that he took what were private notes meant to protect himself (he said so himself), and which are therefore self-serving, and which were leaked to the press by through a friend, etc.  Are those not evidence of duplicity? At one time I would have easily believed Comey over Trump. Not so anymore - especially after it has turned out that collusion was what Trump claimed it to be - a made up story - and the disdainful and self-aggrandizing statements of Comey, not to mention his book in which even he admitted he had gone too far. Not that I mean I ever believe Trump. But, I can't believe Comey either.

But, much more disconcerting is the MR's conclusion that anyone alone with the president would have taken his words - "I hope you can see your way clear to letting this go, to letting Flynn go ... I hope you can let this go" as being an order. The conclusion is not only contrary to plain English, to what Trump actually said, if Comey is being honest, but also contrary to the fact that Comey acknowledged in congressional testimony that he could be ordered to stop an investigation by the president. What if Rosenstein had ordered Mueller to stop investigating? He was the one who made the order to Mueller to investigate in the first place. And the president is his boss.

To suggest that "I hope you can see your way clear to" means "I order you to" without proof that this is what was meant by some smoking gun, seems to me to be another sign of conflict on Mueller's part. More, Comey did not act as if it was an order. He neither argued with Trump, nor resigned, nor followed up on the so-called "order." What am I missing, particularly as in his testimony Comey indicated he felt intimidated by the president? Moreover, if it was an order, why did Trump not act like Comey had disobeyed an order? There is no claim to a follow up by Trump to see if Comey followed up an "order" the way he followed up with other things he wanted done, which are highlighted in the MR. 

I was also surprised that the MR indicated that Trump speaking with Comey alone was evidence of intent to interfere - that is - it was done secretly. That makes no sense. In fact, it indicated to me that there was some bias afoot.  If Trump, the executive, wants to speak with the director of the FBI about an investigation, who should be listening in? I think the answer is no one, no matter where the conversation goes. Even the Vice President is not allowed to be involved in criminal investigations. But the president actually can. And that can't mean - any president but Trump.

Certainly, if those are the facts before a jury, there has to reasonable doubt (I'm not counting people who just hate Trump so much it has to be "guilty, guilty, guilty") if for no other reason than the words Trump used - he hoped. That is imploring, not directing. Comey doesn't suggest that Trump spoke in an aggressive manner or threatened him. In fact, it seems he was often made efforts to be conciliatory with Comey (though it clearly made Comey sick). When Trump asked if Comey would be loyal (and I really do not have a problem with that - its not the same as - I want you to be disloyal to the country or lie to Congress), as after all, Trump didn't appoint him and there were many who were trying to pin something false on him. Do you really think Holder and Lynch weren't loyal to Obama? When Comey answered that he would be honest with him, Trump said, that was what he wanted, "honest loyalty" (torturing the language as Trump can, but at least acknowledging the honesty aspect of it). You know what I think Trump meant? That Comey shouldn't try to screw him or take what the NYTimes stated as fact.

The MR also suggests that if you believe Trump did what Comey said he did, it was interfering with an investigation. I cannot go along with this either, for the obvious reasons that Trump is the president and Comey himself said that he could have ordered him to shut down the investigation. Did I miss that in the report? If I (that is, the beloved angel-like author of this blog) come into your store and stop you from making ice cream, I have committed a crime. But, if your boss does it, it is not a crime.

I do agree with the MR that Trump's statement had a nexus to a case. Obviously, it does - the Flynn case. But, it is in the discussion about a president's immunity from prosecution for obstruction that I have a disagreement with the MR on the law. The MR spends a lot of time reviewing the issue of presidential powers and whether it prevents Congress from obstruction charges. It's mostly about the separation of powers. At the end of the discussion, it concludes -  "Accordingly, based on the analysis above, we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article Two powers."

Well, though they only say - "not persuaded," which is pretty thin, I agree with that very broad statement, and believe it is clearly backed by the law. The president is not above the law. He can't bribe someone or perjure himself because he's the president. He can't willy-nilly interfere with investigations in a corrupt, probably surreptitious way, by paying off investigators, intimidating witnesses, etc. But, let's also not forget, the president could have simply pardoned Flynn. Would that be corrupt? It's pretty much deemed an absolute power while the president is in office. Presidents have pardoned rebels and traitors and terrorists. If the president wanted to pardon Flynn (who, by the way, I have always considered a slightly deranged individual and hoped would not be in the administration), he absolutely could have. Could he have done it to protect himself? I think so. I think George H. W. Bush did it when he pardoned 6 men involved in Irangate - which involved actual crimes that should have been investigated. The prosecutor said "Cover-up!" and it likely was, in my view. Made me really mad (though I think GHWB one of the better, if not the best president, in my lifetime). But, I didn't think he couldn't do it. If Clinton can pardon Marc Rich, and Obama a terrorist and a traitor, Trump, like any president, can pardon whoever he likes too, whether you or I like it or not. And, he doesn't even have to explain it. If we don't want the president to have that power, we have to amend the constitution.

The above is especially true in light of the fact that his good will towards Flynn seems not to be for the president's own benefit. So, the MR found and if you want to accept some of it, you shouldn't dismiss those parts that are uncomfortable for you.

With respect to intent, the MR does, however, conclude that because he made a statement that firing Flynn would end the Russia investigation, his act was intentional interference with that investigation. Now, that's just silly. Why would he even assume that the president didn't want anyone who actually did interfere with the election to be punished? There's no claim that Flynn interfered with the election and no question now that no American did. If I have a fire and call the fire department and mention that at least calling the fire department will mean we won't have to sleep at a friend's house, it does not mean in any way that I called the fire department to stop having to sleep at neighbor's homes. I called because there was a fire. The statement about not having to sleep at my friend's house is an observation of a fact, not a causal relationship. At least without more evidence (like a statement "I'm going to call the fire department (fire Comey) solely to avoid sleeping at our neighbor's house (avoid the Russia investigation) and for no other reason as I don't care if my house burns down." Trump clearly thought there was no there there with respect to his campaign's collusion with the Russians - and he was right - and thus thinking that firing Comey, who lied about his conversations with the Russian ambassador (not about the election) - would end the election investigation, is not evidence of guilt, but was at that time at least rational (if way too hopeful and naive) thinking. This is hardly rocket science because, as far as Mueller could tell after 25 million dollars and two years was that, "the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities." You can believe otherwise. Investigations can come to wrong conclusions. But, officially, and in investigating obstruction, you have to take it as a fact.

Last, the MR also concludes that because Trump asked a deputy National Security Advisor to do a memo indicating that Trump did not ask Flynn to discuss sanctions with Russia's ambassador is a sign of intent to interfere with the investigation. That's a big stretch. Why not conclude instead it was for the purposes of memorializing what the president saw as the truth? You know the saying to a hammer, everything looks like a nail? It applies to prosecutors too. It's one reason their investigations should be restricted. Well, actually prosecutors are restricted . . . except, it seems, for special prosecutors.

I'll end my analysis of the Flynn "hope" issue there. There were other acts by Trump that were considered under the MR and for which, ultimately, there was no conclusion either, but the implication was that there were actionable grounds but for his being the president. Without going through a long analysis on each, I do think the president could legitimately ask Comey to go public with what he told him privately - that the FBI wasn't investigating him personally. Trump could make outreach to the heads of departments (like the CIA and National Security). He could fire Comey (no one deserved it more and the Ds use to think so too, until it benefitted them to not) even if he did say he was thinking of the Russia investigation at the time (which he knew he couldn't stop - the next day he acknowledged that his firing Comey could make the investigation last longer), particularly in light of the fact that there wasn't a basis to it. Imagine if the rule was, as long as there is a possible investigation of the president, the Attorney General and the director of the FBI are immune from being fired. That's a type of tyranny too, even if not by the head of state.

In the end, were any of these acts solid cases of corrupt interference with a prosecution or an investigation that could lead to a case, presuming they are true? I think not. Trump could also mislead the press, even if it's a bad idea. The grounds for obstruction can't be, "See, the president is a jerk" or has impulse control issues (boy, does he). And, being a little defensive for myself, though I don't like the president - think he's almost unlikeable - I would have no problem believing he was guilty of a crime if there was evidence - like, say, there was for OJ, who was a childhood hero of mine and I presumed innocent until the chase in the white Bronco. If you read the evidence or watch the O.J. trial, he was guilty of murder (though possibly not the unrelated crime they later convicted and imprisoned him on) even if he was personally charming.

What I care about is that we have rule of law. If we have special counsels who are essentially directed to investigate a president in the hopes of finding a crime, rather than investigate someone there is probable cause committed a crime, then there's a big problem. And it has been before this with Clinton and Whitewater. If we have broad and very vague crimes like obstruction, and there's no perjury (or the like) or witness/jury tampering or bribery, involved, then we have to be very careful to restrict them to something very solid or we risk truly becoming a banana republic. The road to tyranny has many paths. One is by giving anyone too much prosecutorial power. Another is by unseating a president by investigations or prosecutions when his opponents are concerned they won't beat him in 2020. Another is giving what is the power of elected officials over to courts. Another is by turning every investigation into an investigation into cover-up, which is often the real goal since Watergate. And, because it seems there is a tendency to cover up even when there is nothing to cover up, you will likely find something.

There are certain crimes that, while not black and white either, are easier to define than obstruction - perjury, witness tampering, etc. The president can't ask someone to perjure himself or lie to a federal agent. I read Mueller's brief and it does not appear Trump did so even if he did ask people to make statements that it seems he believed to be true (I find people's ability to talk themselves into believing anything that benefits them simply human nature). Obstruction is a very broadly defined crime and if we aren't careful, it can mean almost anything.

In the end, like with Kavanaugh, this really isn't about obstruction of justice. It's about "lock her up" and Garland, about the birther claims and the general hysteria over identity that is consuming too many Ds and may fracture them. Generally, you know, Trump must be destroyed. We have, as always, another election coming. It's going to be wild and likely disgusting. We should be done with this investigation. Not that I expect us to be.

As always, I wish there could be comments. You can email me and I will post them myself, anonymously, if you like. I know this stuff is upsetting and people feel very strongly one way or another.

I pledge to post again quickly when I return from Alaska, but almost certainly, about Alaska. And then, if you are really lucky, I might even finish my post on Why Wittgenstein Doesn't Matter. You think I'm kidding, don't you? Actutally, I wrote another that is finished and that will be a lot more fun.