Published by The Lawfare Institute
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Thus far, my argument with former federal prosecutor and National Review columnist Andrew C. McCarthy has been about whether and how the president can be held to account for obstruction of justice. Having gone back and forth over the territory in several exchanges, it now raises a different question: Are the facts and the law as he states them?
Perhaps McCarthy’s most egregious misrepresentation concerns the obstruction statutes and what the U.S. Attorney’s Manual says about them. Drawing on both, he repeatedly insists that for an obstruction charge to be lodged, someone has to obstruct a “pending proceeding.” When Trump urged Comey to go easy on Flynn and then when he fired him, the only official action under way was an FBI investigation. As McCarthy correctly points out, an FBI investigation does not qualify as an official proceeding, pending or otherwise.
This is a critical matter bearing on President Trump’s vulnerability to being cited by the special counsel Robert Mueller in a referral to Congress for obstruction. If there was no pending proceeding against Flynn, McCarthy asserts, there can be no obstruction charge against President Trump, period, full stop.
It is also the point on which McCarthy hangs harsh criticism of Deputy Attorney General Rod Rosenstein for setting in motion the criminal side (as opposed to the counterintelligence side) of the Mueller probe, which he contends was done wrongfully in the absence of a crime or a pending proceeding before a grand jury or a court. If Rosenstein got that wrong, as McCarthy contends, and the entire Mueller investigation has been launched in violation of Justice Department regulations, a lot of cards could come tumbling down.
But McCarthy has either not read, misread, or is misrepresenting the relevant obstruction statute, which was enacted as part of the Sarbanes-Oxley Act in 2002.
In plain black letters the statute reads (with my emphasis):
18 USC 1512(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both...
18 USC 1512(f) For the purposes of this section—
(1) an official proceeding need not be pending or about to be instituted at the time of the offense.
In other words, contrary to what McCarthy writes, no official proceeding has to be pending. A president can commit the crime of obstructing justice by interfering with a future official proceeding. The fact that there was only an FBI investigation under way is completely irrelevant. Insofar as Trump is concerned, the future official proceeding in question would be either a grand jury investigation of Flynn or a prosecution of Flynn. No one would argue that either are not “official proceedings” as the law defines them.
In trying to drive home his point, McCarthy turns to a discussion of Section 1512 in the U.S. Attorney’s Manual, but, remarkably, he omits words from a critical paragraph defining what an official proceeding is and whether, in fact, after the passage of Sarbanes-Oxley, a proceeding has to be pending at the time of the offense.
Here is what the U.S. Attorney’s Manual actually says in full:
This definition is in large part, a restatement of the judicial interpretation of the word "proceeding" in §§1503 and 1505. However the case law interpreting these provisions also required that the proceeding had to be pending. See this Manual at 1722 and 1727. 18 U.S.C. § 1512 does away with the pending proceeding requirement for judicial matters and matters within the jurisdiction of Congress and Federal agencies. In the words of § 1512, “an official proceeding need not be pending or about to be instituted at the time of the offense” (emphasis added).
In other words, everything McCarthy says about the necessity of a pending official proceeding is false. Just to repeat the critical words that he omits in his discussion of the statutes and the U.S. Attorney’s Manual: 18 U.S.C. § 1512 “does away with the pending proceeding requirement for judicial matters” and “an official proceeding need not be pending or about to be instituted at the time of the offense” (my emphasis). National Review owes its readers a correction.
In the first McCarthy column I criticized, McCarthy instructed his readers on “the critical distinction between counterintelligence investigations and criminal investigations” (McCarthy’s emphasis). Both kinds of inquiries, he continued, “are called ‘investigations,’ just as apples and oranges are both ‘fruits,’ but they are very different things”:
Criminal investigations are about prosecuting people who violate the penal law … Counterintelligence is an information-gathering exercise undertaken for one purpose and one purpose alone: to inform the president, through his subordinate intelligence officials, of information about threats to, and opportunities to advance, American interests.
No sooner were these words written than were they rubbished by events. As Mueller has dramatically demonstrated, counterintelligence investigations can indeed be conducted to enforce the law through judicial proceedings. Mueller’s stunning exposure of a Russian plot to manipulate the American electorate is a counterintelligence investigation masterpiece, and it came with a serious criminal component: indictments of thirteen Russian plotters. That those Russians are unlikely ever to see the inside of an American court house is irrelevant.
Some years ago, a prominent legal analyst wrote that the “theoretical divide between what is a ‘criminal’ matter and what is a national-security ‘intelligence’ matter does not track reality.” Espionage, for example, this expert continued, “is both a dire national-security issue and a serious crime.” That’s the view I share. The expert in question happens to be the very same Andrew McCarthy who today vociferously holds the opposite view. In light of Mueller’s Russia surprise, it would seem that, if anything, it is McCarthy’s current view about counterintelligence and criminal investigations being as different as “apples and oranges” that “does not track reality.”
I confess to being mystified by both McCarthy’s bald misreading of the obstruction statutes and his unannounced pirouette on a matter he himself has deemed fundamental, just as I am disappointed by his use of terms of abuse like “rabid” and “deranged” as applied to me.