Published by The Lawfare Institute
in Cooperation With
This morning, the Governance Studies program at Brookings—where one of us works—released a lengthy report, entitled “Presidential Obstruction of Justice: The Case of Donald J. Trump.” Written by Barry Berke of the law firm of Kramer Levin Naftalis & Frankel, Noah Bookbinder of Citizens for Responsibility and Ethics in Washington (CREW), and Brookings Senior Fellow Norm Eisen, the lengthy document makes the case that:
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.
While stopping short of a firm conclusion that the President of the United States is guilty of a felony, the report both argues that President Trump’s conduct raises serious questions under the obstruction statutes and spends considerable energy debunking possible defenses against obstruction charges. And the authors leave no doubt that they suspect a criminal violation did occur. As they conclude, even while recognizing that the “investigation is ongoing, and many facts are still to be determined,” their “review of the facts and the law leads us to the view that the president likely obstructed justice.”
There is a lot that is valuable in this report. There has been relatively little analysis of Trump’s conduct with specific reference not merely to the obstruction statutes but also to the voluminous case law on their meaning as applied to specific fact patterns. Obstruction of justice is not a colloquial term. It is a term that refers to a specific collection of criminal laws, each of which has specific elements and each of which has been the subject of iterative interpretation by the courts. Fleshing out those interpretations with reference to what we know—or what we think we know—about what Trump did is a useful exercise. Indeed, not knowing that this report was in preparation, we have been involved for the past several weeks in a similar undertaking ourselves.
That said, we are at least a little less confident than the authors of this report seem to be that an obstruction charge against the President is plausible based on available evidence. The report actually doesn’t discuss the plausibility of a case, focusing rather on the likelihood of criminal activity having taken place as a factual matter. We are both less confident than the authors as to whether obstruction in fact took place and very uncertain as to whether a criminal case is a likely outcome even if it did. In what follows, we lay out both the areas of common ground between our own reading of the case law and those of these authors and identify a few reasons why we are more cautious about drawing legal conclusions at this stage and regard obstruction as a plausible investigative hypothesis, not a probable legal and evidentiary conclusion.
First off, the report makes, in detail and with a great deal of case law citation, the following general points with which we agree:
- The President’s conduct raises serious questions under a number of different obstruction of justice statutes. A responsible prosecutor would also consider his conduct as a possible conspiracy to obstruct justice.
- Common bases for dismissing these questions—particularly that the President has the lawful authority to fire the FBI Director—do not fully answer the questions raised, because obstruction frequently involves otherwise legal conduct committed for corrupt reasons.
- Aspects of President Trump’s specific conduct—particularly his seeking loyalty from Comey and his asking others to leave the room before pressuring him on investigative matters—heighten concerns about obstruction.
More broadly, the report identifies a wide variety of case law touching usefully on a number of different aspects of President Trump’s conduct.
For at least four reasons, however, we are cautious about assessing the probability that this case will or should end in an obstruction charge—or even that the President’s conduct ran afoul of the obstruction laws as a factual matter.
The first reason, one the authors acknowledge, is that the specific facts matter enormously, and they are not yet in. Obstruction statutes require proof of the defendant’s specific intent. That means that prosecutors bear the burden of proving beyond a reasonable doubt not merely what happened but that the defendant was aiming to do something corrupt.
On this point, there is a lot that is suggestive in the public record. But the narrative that emerges from sources in the public record will not predictably match the picture that evidence gathered in the grand jury will present. At this point in the investigation, the factual record of presidential actions that may constitute a crime consists in large part of news stories, which vary in sourcing, specificity, and, ultimately, admissibility in court. Given the sensitive nature of the topic, it is unsurprising that many of these reports rely on anonymous sources. But this fact raises the question of whether statements on the record, under oath, and before a grand jury will match these reports, and it raises the question as well of whether testimony by other actors will corroborate them or tend to refute or complicate them. Witnesses, after all, may contradict one another. Documents may suggest facts different from the facts suggested in testimony. The entire corpus of evidence may fall short of prosecutor’s rigorous burden of proof, though it may satisfy a reasonable historian’s or journalist’s sense of what likely happened.
Even if the evidence all points in the same direction, the nature of the legal inquiry in obstruction cases is such that a determination of requisite intent may turn on very small details. These details, when they emerge in evidence presented to the grand jury, may be more or less damning than is the picture we have now. That uncertainty gets magnified because many of the details are reasonably subject to multiple interpretations; what seems damning to us when reading the newspaper or listening to Comey testify may seem less so to the hypothetical juror Mueller has to consider knowing what other testimony she may hear.
Put another way, the standard for a fact’s inclusion in this report is that some newspaper reported it—or, to be more precise, reported that sources said it. Anonymous hearsay is not admissible in court. The standard Mueller will use for facts is that someone with first-hand knowledge of a fact is willing to swear to it under oath in a fashion he judges cannot be impeached either by other witnesses or by other evidence. That’s a very different standard, and if we limit our consideration of the evidence to facts that meet this latter standard, the picture may look much better for the President.
Of course, it also may look much worse. Because while Mueller is limited to a rarified set of facts, he is also able to compel the cooperation of witnesses and the production of documents not available to journalists. So our point is not to predict that the case will evaporate as a result of the investigation, just to observe that it will ripen and that the facts will not look the same as they do now. That makes the current factual base a precarious one on which to assess the probability of criminality.
Second, at least based on what we know now, the evidence is simply not clear enough to satisfy the “proceeding” requirements of § 1503, § 1505, or even the more relaxed version that courts have read into § 1512. Convictions under § 1503 and § 1505 require (1) that there be a qualifying pending proceeding and (2) that a defendant had knowledge of that proceeding. (We should note that § 1503 does not explicitly contain a proceeding requirement, and several courts have questioned whether the statute imposes one, without holding that it does not.) As the authors note, without more evidence about President Trump’s knowledge of specific proceedings at specific times, these requirements will be difficult to meet. Section 1512’s requirements, though different, also pose a high bar. While a pending proceeding is not required, the proceeding must be “reasonably foreseeable” at the time the action is taken. This means that there must be evidence that President Trump foresaw the possibility of the kind of proceeding he sought to impede before he acted to, for example, fire Comey. And while courts have sometimes held that an awareness of an active investigation into a matter makes a future grand jury proceeding foreseeable to a certain defendant, this fact alone is not sufficient. For example, in U.S. v. Martinez, the defendant was a police officer with extensive experience testifying in grand jury proceedings, and therefore could foresee the existence of a grand jury proceeding concerning his own behavior. President Trump, on the other hand, has evinced no familiarity with the procedures of unfolding investigations. It seems unlikely that participating in misconduct related to an investigation will always make future judicial proceedings foreseeable to all defendants. And it’s not obvious to us that Trump qualifies as the most sophisticated type of defendant whose knowledge of legal processes should be presumed.
This leads to a third, related point. Proving any of the possible obstruction of justice offenses will necessarily turn on the precise state of mind of the President at specific periods of time, as provable by all of the admissible evidence. The requisite intent can be shown through circumstantial evidence, and it is certainly not required that someone announce his intention to obstruct justice in order to be convicted under these statutes. But the burden is on Mueller to prove Trump’s state of mind in any case.
The trouble that raises is that many of President Trump’s public statements are subject to multiple interpretations as to his state of mind. For example, many people (quite reasonably) interpreted President Trump’s interview with Lester Holt as an admission that the Russia investigation was on his mind when he fired Comey. Trump, after all, said to Holt that “when I decided to just do it, I said to myself—I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should've won.” It’s easy for those of us commenting on the case to grab this most damning passage of the interview—which is pretty damning, after all—and ignore the rest. And it’s equally easy to combine it with later press revelations that Trump boasted about the matter to Russian Foreign Minister Sergey Lavrov:
President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.
“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”
Mr. Trump added, “I’m not under investigation.”
But a prosecutor cannot work that way. Mueller has to be aware of all of the evidence that a defense lawyer would bring to the question of Trump’s state of mind. And a defense lawyer (also quite reasonably) would read Trump’s Holt interview rather differently from the way we might. Because Trump also said in response to a specific question about whether he acted against Comey because of the Russia investigation, “I just want somebody that's competent. I am a big fan of the FBI. I love the FBI.” And he went on:
As far as I'm concerned, I want that thing [the Russia investigation] to be absolutely done properly.
When I did this now, I said I probably maybe will confuse people. Maybe I'll expand that — you know, I'll lengthen the time because it should be over with. It should — in my opinion, should've been over with a long time ago because it — all it is an excuse.
But I said to myself I might even lengthen out the investigation. But I have to do the right thing for the American people.
He's the wrong man for that position.
The prosecutor, before deciding that there was an obstruction, needs to rule out the possibilities that Trump actually believed Comey was a “nut job,” or that he might convince a single juror that he just believed Comey “the wrong man for that position,” or that he acted not to shut down the Russia investigation but rather fully aware that he might actually lengthen it.
There is an additional wrinkle in the case of Trump because of who he is: the President of the United States. While we agree with the authors that if done with corrupt intent, even acts within the President’s lawful authority can be criminal, the shadow of constitutional concerns may increase the need for specific evidence as to his corrupt state of mind. Courts will be rightly hesitant to pry too deeply into presidential intent when the President undertakes an action at the core of his executive authority—such as staffing the executive branch. This is not to say that the president can never obstruct justice by firing the FBI director, but rather that the burden of proof as to specific intent may be even higher in functional terms on a matter like this than in other circumstances. Mueller is not going to bring a case unless the evidence of the President’s state of mind is overwhelmingly compelling.
Finally, there is actually some evidence in the public record that may add to the general appearance of wrongdoing but which could, in fact, be exculpatory with respect to specific obstruction offenses. For example, President Trump’s May 12 tweet suggesting that James Comey “better hope there are no ‘tapes’” of their conversations could seem like a threat to Comey, who would later testify before the Senate Intelligence Committee. However, under § 1512(e), the witness tampering statute, there is a “truth-seeking” defense to the crime of witness tampering. If President Trump’s intent was to “encourage, induce, or cause” Comey to testify truthfully, and the acts taken to carry out this intent were lawful, then he has an affirmative defense to a witness tampering charge. A perfectly plausible reading of the tweet and the subsequent references to tapes, and one that defense lawyers would certainly seize upon, is that President Trump was trying to keep Comey honest by implying that there was an independent record of their conversations. The broad point here is that while the list of acts that may seem like “obstruction” in a general sense is lengthy, it remains to be seen whether any combination of them could actually form the basis of an obstruction charge.
Our bottom line is simple: We’ll wait for the evidence before deciding how probable it is that the President committed obstruction of justice—or any other crime. Trump’s most vigorous defenders are certainly wrong to dismiss the possibility of criminality. Any responsible prosecutor would take the facts on the public record very seriously and would investigate them aggressively. But there are huge differences between a predicate for an investigation and an indictable case. Those differences are not mere technicalities.