Obstruction of Justice

Since the Mueller Report came out, there has been renewed interest in the charge of obstruction of justice against President Trump. For this essay, I am going to primarily source an article from LawFare, published in cooperation with the Brookings Institute. In this article, Quinta Jurecic worked up a heat map assessing, for each subject area of the investigation, the degree to which she believes the Presidents actions are demonstrated to meet three tests:

• Was there an obstructive act?
• Was there a nexus between the act and some official proceeding?
• Can corrupt intent be established?

Note that Jurecic agrees with Mueller’s assessment that “a president may still obstruct justice even if the act in question is taken entirely under his Article II authority.” Alan Dershowitz disagrees.

Given the foregoing, there are four items that are hot across all three tests:

• Efforts to fire Mueller (section E);
• Efforts to curtail Mueller’s investigation (section F);
• Order to McGahn to deny the attempt to fire Mueller (Section I);
• Conduct re: cooperation with Manafort.

Remember that impeachment is a political proceeding, not a legal proceeding. If the impeachment appears to be an attempt to nullify an election, the supporters of the impeached President are going to call it a coup. To avoid this, it is necessary to have evidence of an act so unacceptable that substantial numbers of the supporters defect.

This happened to President Nixon in July 1974, after the Supreme Court ruled, 8-0, that Nixon could not withhold a set of tapes of 64 presidential conversations from special prosecutor Leon Jaworski. One of these recorded a conversation with several staff members six days after the Watergate break-in, in which Nixon proposed an organized effort to halt the FBI investigation. This was the so-called “smoking gun” tape. After it was released, support for Nixon among congressional Republicans collapsed.

I see no evidence that an obstruction of justice charge will have a similar effect on political support for Trump, particularly if there is no evidence of misconduct that Trump would have been obstructing justice to cover up. Consider, for example, the items regarding the Mueller investigation itself. Supporters of Trump consider the investigation unfounded to begin with. They don’t think Trump should have just rolled over and given the special prosecutor anything he wanted. They give him credit for fighting back. Yes, Trump had intent to remove Mueller or limit his scope due to the fact that Mueller was investigating him. Absent a finding of some criminal activity or misfeasance, they question what justice there was for Trump to obstruct.

Any attempt at impeachment is going to have to do better than this. An impeachment centered on obstruction of justice without evidence of the misconduct whose discovery was being obstructed will tear the country apart even further than it already is.