April 22, 2019
“Obstruction of Justice” Isn’t What People Think It Is
With the release of the long-awaited Mueller (Special Counsel Robert Mueller) report, we see partisan politics at work again, and the results are what one might expect. Those that have supported President Donald Trump or believe that he has been the victim of a contrived “investigation,” while others, like David French of National Review , a self-described “Never Trumper,” are shocked, SHOCKED! at Trump’s behavior. Writes French:
I’ve finished reading the entire Mueller report , and I must confess that even as a longtime, quite open critic of Donald Trump, I was surprised at the sheer scope, scale, and brazenness of the lies, falsehoods, and misdirections detailed by the Special Counsel’s Office. We’ve become accustomed to Trump making up his own facts on matters great and small, but to see the extent to which his virus infected his entire political operation is sobering. And the idea that anyone is treating this report as “win” for Trump, given the sheer extent of deceptions exposed (among other things), demonstrates that the bar for his conduct has sunk so low that anything other than outright criminality is too often brushed aside as relatively meaningless.
Judge Andrew Napolitano of Fox News, no stranger to those associated with the Mises Institute, even believes Trump can be prosecuted for obstruction of justice, declaring, “Depending on how you look at them (the accusations), there might be enough to prosecute.” And Napolitano could be correct, given the very low legal bar prosecutors must hurdle to pursue such charges. James Comey prosecuted investment banker Frank Quattrone 15 years ago for a 22-word memo to investment bankers at Credit Suisse telling them to “clean up those files.” Comey was able to convince Manhattan jurors that Quattrone’s memo amounted to “obstruction of justice” even though federal investigators found no criminal behavior at Credit Suisse and in Quattrone’s investment bank activities. (A federal appeals court overturned the conviction and Quattrone entered into an agreement with federal prosecutors that observers said essentially was a victory for the defendant.)
In other words, there was no underlying crime, so Quattrone could not have covered up wrongdoing, since it had not happened. Likewise, as Nick Gillespie of Reason points out , Trump did not engage in a conspiracy with Russian agents to illegally influence the 2016 presidential election, so it is absurd to claim that Trump was “covering up” a crime. While it is true that one can be charged and convicted of obstruction of justice even in the absence of an underlying crime, nonetheless we should be critical of such laws, as actions often can be interpreted in differing ways.
Although readers may believe that federal criminal law is like state law, that is not true. For the most part, in a state court, where charges like murder, robbery, and rape are adjudicated, someone has been identifiably harmed. Thus, the question one asks at a trial is whether the person being tried committed those crimes. (There is a disturbing increase in false charges in sexual assault and child molestation cases in which there was no assault or wrongful act in the first place. That being said, however, the majority of criminal cases tried in state courts feature an actual victim.)
Contrast state criminal law with its federal companion. Unlike their counterparts in state courts, jurors often find themselves determining guilt or innocence based on a confusing set of facts. I have noted in previous articles that in state courts, there is a victim and the central question is whether the accused person was responsible for that harm. In federal courts, however, the players generally agree about what the defendant did, and so jurors are expected to determine if the acts were criminal or not.
Take the federal obstruction of justice statute, for example. The law is defined as follows:
18 U.S.C. § 1503 defines “obstruction of justice” as an act that “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
The problem here is that a clever and ambitious federal prosecutor can interpret the statute very liberally, especially if the original criminal investigation falls apart, as was the case in the so-called Trump Russia probe. Take Trump’s firing of James Comey from his position as Director of the Federal Bureau of Investigation. Comey was a political appointee who served at the pleasure of the president, and he could be fired at any time for any reason.
When Trump fired Comey, however, Comey and Mueller hinted darkly that the firing actually was a crime, since it constituted (in their view) obstruction of justice. That is stretching things, to put it mildly, even in the world of federal courts. Comey is no stranger to creative prosecutions in which prosecutors stretch the meaning of criminal statutes to a point where they no longer can be recognized. For example, he charged Martha Stewart with a number of crimes, including “securities fraud,” which he based on her public statements that she had not engaged in insider trading. Ironically – or, perhaps, not ironically – Comey didn’t charge Stewart with insider trading.
The “securities fraud” charge was especially rich, given Comey’s own criminal behavior in the case. While the federal investigation was underway, Comey’s office illegally leaked grand jury material to the media, and especially the New York Times and Wall Street Journal , that was aimed at damaging the stock price of Stewart’s company, Martha Stewart Living Omnimedia. When Stewart claimed to the press that she had not committed insider trading, Comey claimed that her actions were aimed at illegally propping up her company’s stock price and constituted fraud.
So, when Comey was breaking the law to damage the MSL stock, that was considered an acceptable act by the media and political classes. However, when Stewart told the truth, she was illegally influencing the stock price of her own company. The dishonesty boggles the mind.
The same James Comey who has publicly claimed that his firing was a criminal act is the same James Comey that conducted what only can be called a sham “investigation” of Hillary Clinton after it was revealed she had conducted so-called top-secret U.S. State Department business on a private, unsecured email server, which is prima facae evidence of criminal wrongdoing.
Regarding whether Trump engaged in a criminal conspiracy to “obstruct justice,” perhaps Judge Napolitano is correct. If Comey could successfully obtain guilty verdicts against Quattrone and Stewart, then no doubt Mueller or another federal prosecutor could convince a jury consisting of Washington, D.C., Democrats that Donald Trump broke the law.
Whether Trump did break the law is quite another matter. The White House, for all the bluster against Mueller, did cooperate and cooperated with the special counsel more readily than did the Bill Clinton White House cooperate with special prosecutors in the infamous Whitewater investigation. (In fact, the Clinton White House illegally leaked grand jury information to a reporter at Newsweek and then publicly claimed the special counsel had done the leaking.)
Like so much of federal criminal law, the obstruction statute easily becomes a weapon in the hands of vindictive prosecutors like Comey who seek convictions against high-profile people, not because the people broke the law, but because such prosecutions are politically useful. One doubts that anything Trump did impeded Mueller’s investigation for even a second. For that matter, Mueller’s former lead prosecutor, Andrew Weissman, is known for being unethical and allegedly engaged in outright intimidation of witnesses when he was involved in the Enron investigation and prosecution.
Lest one forget, the original reason for the investigation – to look for evidence that the Trump campaign colluded with Russian nationals to engage in election fraud – turned out to be a non-starter. The New York Times, Washington Post, CNN and MSNBC to the contrary, there was no collusion and the shady way that the FBI acted in using a fabricated dossier paid for by the Hillary Clinton campaign as the basis for calling for a special prosecutor casts doubt on the veracity of the FBI agents and others involved in the investigation. Furthermore, the false dossier also was used as an excuse by the Obama White House to obtain a FISA court order to wiretap the Trump campaign , an action that Attorney General Bob Barr has called spying.
For all the talk about justice, the legal double standard involving federal prosecutors and investigators is very telling. The FBI is empowered to lie under oath, intimidate witnesses, hide evidence, and generally run amok, and federal prosecutors are free to engage in felonious leaking of grand jury material to the media, hide evidence, lie in court, and engage in other lawbreaking, all without fear of facing any legal consequences.
Those being investigated or accused of crimes, however, must play by a different set of rules. They are not permitted to publicly proclaim their innocence (even if they are innocent), nor are they allowed to question any actions prosecutors and the FBI are doing, even if government agents are breaking the law or engaging in unethical behavior. The accused are subject to being tried on nebulous charges of “obstruction” or “lying to the FBI,” or some other nebulous accusation that often is contrived. If Donald Trump didn’t understand that state of affairs when he became president, he surely does now.