In what amounts to an amicus brief for use by special counsel Robert S. Muller III and his team, Norman Eisen, Barry Berke and Noah Bookbinder have released a 108-page article on the topic of President Trump’s possible obstruction of justice. While noting that criminal misconduct is not the only basis for impeachment, they argue that the special counsel’s finding of such conduct certainly should inform Congress’s decision.
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.
Noteworthy is their conclusion that Trump’s actions before and after he fired Comey as well as the firing itself may cumulatively amount to obstruction. (“We also note that potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction,” they write. “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 [about nonexistent tapes of] Comey … and repeatedly denouncing the validity of the investigations.”)
Several points in their analysis stand out.
First, even when considered in isolation, Trump’s firing of Comey could have been illegal if it was done with a corrupt intent. (“Even if some of President Trump’s conduct would have been legal but for his corrupt intent, that does not insulate his actions from the obstruction statutes’ reach. Arguments that President Trump did not obstruct justice because he had the authority to fire an FBI director or stop an investigation, either by direct order or by pardoning its target, are not persuasive under the law. Otherwise legal conduct is just that — otherwise legal. Just as an employer can lawfully fire an employee but not based on her sex, race, or religion, the President’s right to fire an FBI director does not mean he can do so if it is done for the corrupt purpose of obstructing an investigation.”)
Second, the requisite intent for obstruction amounts to carrying out the alleged conduct with “improper intent.” Here, the finding of “improper intent” surely does not fall outside the realm of possibility. (“Although fact-finding is ongoing, it appears that President Trump acted with an improper purpose because his actions were undertaken to influence the Russia or Flynn investigations to benefit or protect himself, his family, or his top aides.”) In some cases — for example, drafting an inaccurate explanation of his son’s Trump Tower meeting — the president was plainly trying to cover for his son. In other cases, corrupt intent can be inferred from Trump’s “multiple, shifting rationales for Comey’s firing. … Shifting explanations are classic indicia of guilty intent.”
Third, the multiplicity of actions upon which an obstruction charge may rest is truly staggering:
Creating a cover story for the Comey firing – the created-in-one-day [Rod J.] Rosenstein memo, which did not contain a formal recommendation that Comey be terminated and which was written after President Trump had already written another termination letter to Comey (that was never sent);
Repeatedly clearing the room before making his requests related to the Russia and Flynn investigations, which is suggestive of knowledge of an improper purpose;
Making repeated demands for loyalty from Comey; Telling Comey that he “hopes” Comey can “let go” of the Flynn investigation because Flynn is a “good guy”;
Asking [Director of National Intelligence Daniel] Coats on March 22 to intervene with Comey to get the FBI to back off the investigation into Flynn;
Making phone calls in March to DNI Coats and NSA Director [Mike] Rogers asking them to deny the existence of evidence of collusion during the election;
Telling [Russian Foreign Minister Sergei] Lavrov and [Russian ambassador Sergey] Kislyak: “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off”;
Telling New York Times reporters that if Mueller were to look at his finances and his family’s finances, it would be ‘a violation’ and would cross a red line;
Making statements decrying Attorney General [Jeff] Sessions’s decision to recuse himself from the Russia investigation, including that he would not have appointed Sessions had he known that he was going to do so; [and]
Helping prepare Donald Trump Jr.’s misleading statement describing why he and other members of the Trump campaign met with a lawyer linked to the Kremlin in June of 2016.
The authors don’t even mention Trump’s constant lying about his financial connections to Russia; his false suggestion that President Barack Obama wiretapped his office; his repeated labeling of the Russia investigation as a hoax; his refusal to acknowledge Russia’s interference in the election (a fact that each intelligence service and virtually all members of Congress agree is incontrovertible); and his refusal to criticize Russian President Vladimir Putin. The purpose of these actions was to try to protect himself from investigators’ prying eyes or to avoid being “outed” by the Russians.
In sum, it is hardly a stretch to conclude that evidence will be found to support an obstruction charge. Frankly, there’s an argument that we already have a great deal of it. The insistence that Trump is in no legal peril and may be cleared by the special counsel (different from concluding that he cannot be constitutionally prosecuted) increasingly appears to be a matter of self-delusion and bad lawyering on Trump’s behalf. The obstruction “brief” should scare the daylights out of those Trump supporters, family members and aides who are smart enough to appreciate the voluminous evidence that may be marshaled against the president.