Efforts by members of Congress to advance the narrative that President Donald Trump “obstructed justice” have now replaced the disproven claims of Trump–Russia collusion.
The public narrative of obstruction, however, originated prior to the conclusion of the investigation by special counsel Robert Mueller and his resulting report.
Special Counsel’s Focus on Obstruction of Justice
It was initially believed that the primary focus of Mueller’s investigation centered around allegations of collusion. However, the release of Mueller’s report makes clear that substantial resources were dedicated to investigating potential obstruction charges—including the question of whether the president obstructed justice by firing James Comey as FBI director.
The Mueller report stated that in regards to obstruction, several statutes could apply including Section 1503 and 1505, but the special counsel chose to focus primarily on Section 1512, which, as the report states, “is an omnibus obstruction-of-justice provision that covers a range of obstructive acts directed at pending or contemplated official proceedings.”
The special counsel’s report dedicates a full section to defending the use of Section 1512 and adopting the broadest interpretation possible.
The Promotion of Use of Section 1512
Among the first mentions suggesting the use of Section 1512 was a June 2, 2017, article by the website Lawfare, which is published by the Lawfare Institute in cooperation with the Brookings Institution.
“It’s possible that § 1512 is the more appropriate statutory provision. It also happens to be easier to prove because it doesn’t require a ‘pending’ proceeding (though the defendant must have contemplated the existence of some future proceeding in order to intend to obstruct it).”
The article was written approximately two weeks after Mueller was appointed as special counsel.
The Obstruction of Justice Strategy
Brookings produced a 108-page report, “Presidential Obstruction of Justice: The Case of Donald J. Trump,” authored by Barry Berke, Noah Bookbinder, and Norman Eisen, on Oct. 10, 2017. They followed up with a 177-page second edition on Aug. 22, 2018, which also came with a lengthy appendix.
The Brookings report appears to be partisan and excludes relevant details at various points. For example, the report notes that Fusion GPS and Christopher Steele, the author of the dossier, were hired by “political opponents of President Trump.” The report fails to mention that Fusion GPS had been hired by Perkins Coie on behalf of the DNC and the Clinton campaign.
“In what is perhaps a reflection of the strength of the evidence that can now be marshaled against the president, his defenders have shifted the fight in large measure away from the merits of the obstruction case to a series of questionable defenses based upon the possible consequences of even a meritorious case. In many ways, the question has become less about whether there is a case that Donald J. Trump obstructed justice, and more about whether and in what form the rule of law will be followed.”
The second edition also contains a section dedicated solely to exploring the use of Section 1512—and as the authors note, they did so specifically because 1512 could be applied toward “obstruction” of potential and possible future proceedings:
“Because a ‘proceeding’ need not be ‘pending or about to be instituted’ for Section 1512 purposes, President Trump’s conduct could have been intended to influence a ‘proceeding’ under the statute if a grand jury investigation was foreseeable even if the obstructive behavior took place before a grand jury investigation actually commenced.”
On page 148, the Brookings report discusses the issue of referring the Mueller report directly to Congress:
“Even though there is no prescribed mechanism for Mueller to refer a case to a congressional committee, there are two options for effectuating a referral that are grounded in precedent. Mueller could ask a grand jury to seek permission from the district court in which it is convened to transmit a Report to the House Judiciary Committee. Alternatively, Mueller could file a report with Deputy Attorney General Rosenstein and recommend that he refer the matter to Congress.”
Although the Brookings report strives to make its case regarding congressional referral, at each turn, it is forced to acknowledge that any referral option would be subject to the authority and oversight of then-Deputy Attorney General Rod Rosenstein, who specifically had the ability under special counsel regulations to block any action he deemed “inappropriate or unwarranted under established Departmental practices.”
There are several hurdles to actually making a charge of obstruction against the president.
To start with, the president was told on three separate occasions by then-FBI Director Comey that he wasn’t personally under investigation by the FBI. Therefore, Trump couldn’t have obstructed an investigation of himself, since he didn’t know there was an investigation to begin with.
Report Authors Retained by House Judiciary Committee
On Feb. 12, 2019, Nadler announced that two of the Brookings report authors, Berke and Eisen, had been retained on a consulting basis as special oversight counsels to the Democrat majority staff. The two men were appointed as consultants to the House Judiciary Committee on Feb 12, well in advance of the April 18 release of the Mueller report.Nadler’s hiring of Eisen and Burke appears to have been intended to go beyond the two men serving as advisers to the House Judiciary Committee. The committee had been arguing for the use of staff lawyers during testimony from AG Barr that was scheduled for May 2, 2019. Barr ultimately declined to attend the hearing—leading to a Democrat vote to hold Barr in contempt.
“Chicken Barr should have shown up today and answered questions. He was afraid of Barry Burke. He was afraid of Norm Eisen. An attorney general who was picked for his legal acumen and his abilities would not be fearful of any other attorneys questioning him for 30 minutes.”
“The committee wanted Barr examined by staff lawyers, including Norm Eisen, who handled ethics questions for President Obama. Eisen had declared months ago that the criminal case for collusion was devastating and that Trump was ‘colluding in plain sight,’ a position expressly rejected by Mueller.”
William Barr’s Foresight
As previously mentioned, Section 1512 is a rather obscure statute, a fact inadvertently highlighted in two separate letters sent by Trump’s lawyers to Mueller. In both letters, one from June 23, 2017, and the second from Jan. 29, 2018, the president’s lawyers address the matter of obstruction. Section 1505, the standard for obstruction, is mentioned in the letters 39 times. Section 1512 isn’t mentioned once. Clearly, Trump’s lawyers hadn’t anticipated the use of Section 1512 by the special counsel team.
Barr’s memo, which contained the subject line “Re: Mueller’s Obstruction Theory,” noted, “It appears Mueller’s team is investigating a possible case of ‘obstruction’ by the President predicated substantially on his expression of hope that the Comey could eventually ‘let. .. go’ of its investigation of Flynn and his action in firing Comey.
“It appears Mueller is relying on 18 U.S.C. § 1512, which generally prohibits acts undermining the integrity of evidence or preventing its production.”
Barr appeared generally alarmed by the liberal application of the statute, rightly observing that “any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.”
Barr noted the spiraling outcomes that could come from such use of the statute and how its effects would ripple throughout the Department of Justice (DOJ):
“Simply by giving direction on a case, or class of cases, an official opens himself to the charge that he has acted with an ‘improper’ motive and thus becomes subject to a criminal investigation.”
Barr noted that Mueller took into account the Office of Legal Counsel (OLC) opinion that a sitting president couldn’t be indicted, but also included “a number of other prudential judgments about fairness and other things and decided that the best course was not for him to reach a decision.”
Barr said that he believed Mueller could have reached a conclusion on obstruction, and stated both he and Rosenstein were surprised when Mueller didn’t do so.
Barr also said that he and Rosenstein didn’t agree with much of the legal analysis contained in the report and felt it represented the “views of a particular lawyer or lawyers and so we applied what we thought was the right law.”
Barr pointed out that in order for the determination of a crime, the DOJ would have had to prove corrupt intent, noting that “the report itself points out that one of the likely motivations here was the president’s frustration with Comey saying something publicly and saying a different thing privately, and refusing to correct the record.”
