President Trump has a peculiar view of government in general, and of the Justice Department, specifically. He views himself as having unlimited authority over the executive branch — without regard to either constitutional or statutory obligations. It’s the “unitary executive” on steroids. Combine this with his mob-based worldview, in which he imagines that his wiseguys (e.g., Roger Stone, Michael Cohen) “fix” things just like others did for other presidents. Trump demands to know, “Where is my Roy Cohn?” The result is a reflexive, constant demand from Trump to make his troubles go away — not by cooperating, but by eliminating the key person atop the investigation.
Officials in this executive branch, like soldiers in an organized crime operation, pledge loyalty to Trump personally. (This is what he asked of former FBI director James B. Comey.) If they don’t, and won’t do his bidding, including crushing investigations into his or his cronies’ wrongdoing, they’re out! (Just like Comey.)
When Attorney General Jeff Sessions recused himself, Trump blew a gasket. He enlisted then-White House Counsel Donald McGahn to try to get Sessions to reverse his decision. The president then tried to hound Sessions into quitting and, at one point, directed McGahn to fire special counsel Robert S. Mueller III. Sessions’s professional ethics have no meaning to Trump; neither does the proper demarcation between Justice Department investigators and the White House.
Trump understands nothing about how government operates, so he imagines if he controls the top guy — whether it’s the attorney general or FBI director — he can make problems disappear. The problem, of course, is when that involves witness tampering, concocting evidence (e.g., the phony explanation of the Trump Tower meeting in June 2016), dangling pardons in front of witnesses, publicly harassing investigators (or ordering his White House counsel to fire Mueller) and the like, it becomes something that sure looks like obstruction.
Therefore, it comes as no real surprise that with the set of investigations arguably more dangerous than the Russia probe, Trump would continue this pattern. The New York Times reported on Tuesday:
As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Mr. Trump called Matthew G. Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call.
Mr. Whitaker, who had privately told associates that part of his role at the Justice Department was to “jump on a grenade” for the president, knew he could not put Mr. Berman in charge because Mr. Berman had already recused himself from the investigation.
Whitaker claims not to have acted upon the direction, but that does not erase Trump’s wrongdoing — namely the effort to derail a criminal investigation into him and his associates. (It would be interesting to find out what Whitaker and Trump understood “jump on a grenade” to mean. Is this macho talk for obstructing justice?) Trump called the report “fake news.”
“As part of Trump’s ongoing corrupt pattern of efforts to deflect the federal investigation from his own criminal conduct in winning the presidency, his attempt to put a conflicted and thus legally ineligible person in charge of the [Southern District of New York-Cohen] prosecution solely to protect himself could well constitute the crime of obstruction under 18 U.S.C. Section 1505,” says constitutional scholar Laurence H. Tribe.
Last year, in a paper for the Brookings Institution, Norman Eisen, Noah Bookbinder and Barry Berke explained, “Although President Trump’s firing of Director Comey is incriminating in its own right, the strength of the case against the president lies in the pattern of obstructive conduct in which he has potentially engaged. Far from engaging in acts that may constitute only a technical violation of the statutes that in ordinary circumstances might not be prosecuted, President Trump appears to have been engaged in an ongoing campaign of obstructive conduct since taking office.”
In the Russia case, that conduct involved everything from issuing a phony account of the June 2016 Trump Tower meeting to denying he had any business deals with Russia during the campaign to trying to influence Comey’s testimony (by implying conversations were taped and/or that Comey illegally leaked materials).
Precisely the same reasoning applies to the Southern District of New York, which was examining hush money payments and potentially a slew of other financial crimes concerning Trump, his organization, his campaign and/or his foundation. Berman — like Sessions, in Trump’s mind — should never have recused himself. Solution? Get him to unrecuse.
Yes, we’ve seen this movie before and whatever the names of the supporting players, the mob-like boss remains the same. The misconduct at issue is identical: Decapitate an investigation, put his own fixer in and thereby protect the boss from harm. If true, it is a textbook definition of obstruction, as well as a violation of Trump’s oath of office to take care that the laws are faithfully executed.
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