Harry Litman practices law at the firm Constantine Cannon and teaches constitutional law at the University of California at San Diego. He served as deputy assistant attorney general in the Justice Department from 1993 to 1998 and U.S. attorney for the Western District of Pennsylvania from 1998 to 2001.
Now that a consensus is beginning to emerge that special counsel Robert S. Mueller III has the evidence to make a compelling case of obstruction of justice against President Trump, the president’s defenders have trotted out a new defense: that obstruction on its own is a mere “procedural crime” that doesn’t really count unless coupled with proof of guilt on an underlying crime.
In other words, defenders view the Mueller probe as akin to the Watergate investigation without the break-in. But this view is wholly untenable.
The legal version of the argument is, as explained by Rich Lowry in National Review, “if Trump didn’t collude with Russia — or doesn’t have some other criminal secret to hide — it’s hard to see what his corrupt intent would be in an obstruction case.”
First, the premise doesn’t hold water. We won’t know for some time what Mueller’s probe will uncover, but we already know that the Trump campaign had extensive contacts with Russians — The Post has reported more than 30 — and that Trump flatly lied in claiming there were none. More damning, the president himself insisted on drafting a false account of the famous June 9, 2016, meeting between a Kremlin-connected Russian lawyer and senior campaign members, including Donald Trump Jr.
But even if none of that were true, there are plenty of reasons a defendant plausibly could act with corrupt intent to scuttle an investigation that had yet to bear fruit. The defendant could fear political embarrassment; or liability for an associate or family member; or uncovering of other crimes, such as financial or tax violations; or exposure of civil liability.
Or he might be Donald Trump. Because turning the argument around, the evidence appears overwhelming that Trump has been rabid to shut down the investigation and savage anyone involved with it. Trump also tried to hide his motives behind a series of particularly ham-handed lies, including the claim that Mueller should be fired because of a distant dispute about golf fees at the Trump National Golf Club in Virginia. In other words, his corrupt intent fairly jumps out of the evidence, regardless of whether he separately colluded with Russia.
The argument becomes even weaker if the president’s defenders argue that Trump was unaware of any of the campaign’s extensive involvement with Russia. That’s exactly what happened with President Richard Nixon, who claimed at the time that he was ignorant of the Watergate break-in, and yet we know he acted with corrupt intent to squelch the resulting investigation, ordering others to try to persuade the FBI to halt its investigation into the break-in.
Trump’s obstruction was light-years more extensive, crass and hands-on. He allegedly tried to extract a pledge of loyalty from FBI Director James B. Comey and pressured him to drop the Michael Flynn case, then fired Comey when he didn’t. He also waged a public smear campaign against Mueller and the FBI — reportedly even attempting to fire Mueller before his White House counsel threatened to resign.
The practical version of the “mere obstruction” argument is that while the charges may stand up as a legal matter, they may not move the needle in Congress — the judge of impeachability. Thus, as Paul Rosenzweig writes in the Atlantic, fact-finders will forgive the coverup absent proof of the underlying crime.
The underlying premise of this view is that short-term politics, rather than history or principle, will drive Republicans’ response to Mueller’s case. And there’s ample reason to believe as much: The House impeached President Bill Clinton for obstruction of justice, with the enthusiastic support of Republicans, for far milder intervention. And yet, many Republicans don’t even offer a pretense that they intend to weigh Trump’s conduct against historical or constitutional standards. Rather, they offer cynical attacks on Mueller, proffer phony arguments or — that great base-pleasing standby — somehow make the issue about Hillary Clinton.
Ultimately, the political argument is just a way to dress up the grim fact that the Republican majority seems indifferent to the strength and severity of the charges that Mueller is developing. Its sole allegiance is to the preservation of political control, to which end Republicans have embraced an embarrassing series of diversionary tactics and bogus defenses of the president. Indeed, there seems to be nothing Trump could do that would justify impeachment in Republicans’ eyes.
Congressional Republicans are all in on defense of party over country. They are determined for temporary political gain to prop up a leader who is a rogue, a constitutional menace, and yes, a criminal no less than Nixon. They have lost all sense of constitutional duty. If they do not find a way to regain it, history will judge them harshly.