Presidential Obstruction of Justice: The Case of Donald J. Trump

Paper via Governance Studies at Brookings – Presidential Obstruction of Justice: The Case of Donal J. Trump. Barry H. Berke, Noah Bookbinder and Norman L. Eisen. October 10, 2017. “Executive Summary – There are significant questions as to whether President Trump obstructed justice. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey. There is also a question as to whether President Trump conspired to obstruct justice with senior members of his administration although the public facts regarding conspiracy are less well-developed. 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. While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case. That Comey ignored that instruction is beside the point under applicable law. We also note that potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction. Here, such actions may include fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope there are no ‘tapes’ of our conversations,” despite having “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations. 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. The president will certainly argue that he did not have the requisite criminal intent to obstruct justice because he had valid reasons to exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge 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. The public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI Director James Comey. While we acknowledge that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that his acts may have been done with an improper intent to prevent the investigation from uncovering damaging information about Trump, his campaign, his family, or his top aides…”