Sean Erenstoft: If our President convened a meeting with Jeff Session and Rod Rosenstein to formulate a method in which to undermine the investigations into whether Trump’s 2016 campaign colluded with the Russians, his conduct would be an impeachable offense under the law. If U.S. Attorney General Jeff Sessions and/or Deputy Attorney General Rod Rosenstein “knowingly participated in such a plan,” they too would have committed a crime. And there can be no doubt that such an obstruction of justice is an impeachable offense. . . just ask Richard Nixon.
The news is awash following the abrupt firing of F.B.I. Director James Comey but little has been written about whether the act was a high crime and misdemeanor sufficient to make a case for impeachment against President Trump.
While potentially plausible excuses exist for the firing, the Administration’s shifting explanations about its genesis makes it evermore suspect. There is ample evidence of obstruction of justice given the proximity in time to the hearings on Capitol Hill (by former Director of National Security, James Clapper and former Acting United States Attorney General, Sally Yates and the F.B.I. Director, James Comey) and other attendant conduct, meetings, tweets and comments by the President.
I believe that Mr. Comey’s firing was not “for cause” but intended to truncate Comey’s expanding investigation. In fact, his firing came just a day after Comey signaled the need for additional prosecutorial resources.
Surprisingly (not surprisingly), President Trump had just praised Director Comey in the weeks running up to his firing; and Comey was widely credited (by Trump himself) running up to what has now been termed “the Tuesday night massacre.”
As a practiced lawyer, I think it’s a good time to review the legal definition of obstruction of justice and why I believe it applies to President Trump and anyone who knowingly participated in the plot to stymie the on-going investigation into Donald Trump’s campaign and his administration.
Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “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 and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”
What is the mental intent required? This is known to lawyers as the mens rea. The term “corruptly” referenced in the above code section defines the mens rea. That is addressed in the law as follows:
18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information” (emphasis added).
Was the investigation a “proceeding” under the law? Yes. Section 1503 criminalizes the same conduct in judicial proceedings. So, by extension, obstruction during an investigation might violate § 1505. In sum, President Trump would have to have known that the investigation was on-going in order to violate the statute; and must have had the intent to truncate the investigation, even if he didn’t succeed.
The individual also has to know that a proceeding is happening in order to violate the statute, and must have the intent to obstruct—that is, act with the purpose of obstructing, even if they don’t succeed.
So, where’s the problem in moving forward you may ask?
The burden of proof that prosecutors must meet includes considering the context. Trump will simply explain that he was just doing his job and was acting within his constitutional mandate to take care that the laws be faithfully executed. His stated excuse was that he had simply lost confidence in Comey’s ability to meet the President’s law enforcement priorities. Much like Ronald Reagan took a hard-line about drug enforcement — so too can Donald Trump emphasize immigration or any other subterfuge in which he can suggest that James Comey was not meeting his law enforcement expectations. Thus, the “acting with an improper purpose” challenge to prosecutors would require rebutting the posture that the President was acting within his constitutional authority to take care that the laws (he chooses to enforce) be faithfully executed.
The President may have built-in some cover as well by claiming that both the Department of Justice, headed by Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein recommended Comey’s dismissal. Indeed, questions pervade about who asked who to make those recommendations. And it is likely that Trump will assert executive privilege to essentially hide evidence of those discussions, proving the mens rea element may be difficult, but not impossible, to overcome.
Ultimately the question comes back to President Trump’s motives: Did the President intend for Comey’s firing to “influence, obstruct, or impede” the Russia investigation? Even if he had other goals—including his stated concern about the public perception of the F.B.I. — if obstructing or impeding the Russia investigation was a goal, that would constitute obstruction of justice.
Given that Trump managed to obtain Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein’s loyalty oath by causing them to physically endorse the reasons offered for Comey’s dismissal (as evidenced by the termination letter that accompanied the firing), these two men are unlikely to commence a criminal procedure against the President. Indeed, they are colored by the same brush and potential suspects given their seeming participation in the crime.
The only potential mechanism is impeachment. Obstruction of justice formed the first article of impeachment of President Nixon and the third article of impeachment of President Clinton. In both instances, the articles contained specific allegations amounting to a pattern of obstruction. Both articles alleged false statements by the president, concealing evidence, and counseling witnesses to lie.
That’s your federal law primer for the day.
Sean Erenstoft can be reached at (310) 613-8887.