Bilateral Commentary

Obstruction of Justice

I am not a lawyer.  My expertise and training is not in law.  My graduate degrees are not in juris prudence.  I don’t play a lawyer on TV, and I didn’t stay in a Holiday Inn Express last night, so my bona fides in knowing all of the ins and outs of the legal system are not going to earn me a seat on the Supreme Court any time soon.  But I do have a background in governance and interpretation of federal laws and standards as they apply to compliance, so that does help with the vague language which makes up the rabbit hole I’m about to drag you readers down.

 

A lot has happened over the last 100 hours.  Sally Yates and James Clapper testified before the Senate Judiciary Committee.  Yes, that happened just four short days ago, and yes, it feels like a lifetime ago.  FBI Director James Comey was fired by Donald Trump, and the administration has been in complete damage control ever since, dealing with conflicting information coming from those individuals who have been assigned blame for the decision at some point. 

 

The testimony of Sally Yates and James Clapper was extremely informative, and got even more informative as the week wore on.  Both Yates and Clapper provided a high level overview of events surrounding the Michael Flynn investigation, and the process of the investigation and reporting itself.  While the event was clouded by the jockeying of Republicans and Democrats to spin the line of questioning to fit their particular narratives, it was the direct answers that Yates and Clapper gave that foreshadowed where we are headed.  Both Yates and Clapper presented descriptions of an incoming administration who did not want to see the facts, and were held little trust for those in positions that could disclose the truth.  We also learned that there was obviously more to the story of Flynn’s connections, those who were also complicit, and where the investigation was headed, but that was bogged down in a battle by Republicans to shift the narrative to finding out how information was leaked, and by who, rather than discovering who was committing possible treason.  Just when we thought this was going to dominate the discussion for the week along came another bombshell – the termination of FBI Director James Comey.

 

The termination of Comey has had many twists and turns.  Donald Trump first started out with saying it was a memo from Deputy Attorney General Rod Rosenstein that forced his hand.  Then Trump said it was the state of the FBI, the lack of support the FBI rank and file had for the Director, and the disarray the agency was in, that caused the firing.  Then Trump came clean and stated what may be the ultimate truth – that the Russia probe was getting to him and he hoped that by removing Comey it would bring the investigation to a quick close.

 

Deputy Attorney General Rod Rosenstein was pushed under the bus and initially identified as the driver for Comey’s termination.  This prompted Rosenstein to demand that the White House correct what he felt was an inaccurate depiction of events and the intent of the memo.  The White House did change their narrative and Donald Trump took complete ownership of the termination, removing any linkage to Rosenstein and his memo.

 

Acting FBI Director Andrew McCabe was next up, and he quickly struck back at Donald Trump for his words about the status of the FBI and the level of support Director Comey had in his role.  McCabe was quick to defend his ex-boss during testimony to the Senate Intelligence Committee and stated multiple times that the rank and file within the agency were behind Director Comey.

 

So what does all of this have in common?  Where can this possibly be leading us?  What are the links between all of these individuals and actions?  Russia.  Each of these people have been caught standing directly under a fan when Russian scat has gone airborne, and each have been covered in some shape or form.  Most importantly, they have been cast into the public spotlight as a result of having to deal with investigating Russia or explaining the outcomes of a Donald Trump decision on Russian investigations.

 

Title 18, Part I, Chapter 73 discusses the federal law outlining Obstruction of Justice.  This law becomes extremely interesting and of great importance as we wade through the happenings of the week, and examine the behaviors coming from the White House and Mr. Trump.  We need to understand if there were any possible occurrences of obstruction, and which part of the law come into play.

 

In reviewing Title 18, Part I, Chapter 73 I find the following passage to be of importance. 

 

18 U.S. Code § 1503 - Influencing or injuring officer or juror generally

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or 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 administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

 

Donald Trump tweeted this the morning before Yates was to testify.

It seems that Trump is implying that Yates knew about the release of classified information and was intimating that it was her who made the release.  It also seems that Trump was suggesting that should this information come to light there would be severe consequences.  Seems that is a threatening communication with intent to influence, intimidate or impede Yates from giving full and honest testimony.

 

The intimidation didn’t stop there.  Trump also went after recently fired James Comey.

There is little doubt what the intent of this veiled threat is.  This is a clear attempt to muzzle Comey before he has a chance to discuss any of the conversations where Donald Trump asked the Director about an on-going investigation, of which Trump and his associates were involved.  This is actually even more egregious than the Yates tweet as there is no doubt what the intent of the tweet was.  This was a threat, plan and simple.

 

I should clarify something about investigations and knowledge of existence of investigations.  While I do not believe there is any direct criminal act in asking about the existence of an investigation involving oneself, it is highly unethical to ask someone involved in that investigation, or overseeing it, for any details associated with it.  The proper course of action should have been for Mr. Trump to go through his General Counsel and have them approach the FBI with the question.  Normally if a high ranking individual is target of an investigation they will receive a notification of investigation so they can have representation with them in the event of questioning or contact with investigators.

 

18 U.S. Code § 1505 - Obstruction of proceedings before departments, agencies, and committees

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever 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 is being had by either House, or any committee of either House or any joint committee of the Congress.

 

18 U.S. Code § 1510 - Obstruction of criminal investigations

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator (As used in this section, the term “criminal investigator” means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States).

 

Preet Bhara was the first domino to fall.  One of the 46 US attorneys asked to resign after Trump took office, Bharara’s was the most strange.  Bharara had several investigations underway, including an investigation into Tom Price, Trump’s pick to lead the Department of Health and Human Services.  Price had become a target during his confirmation hearings as a result of investments he made while in Congress.  Price had maintained a portfolio worth hundreds of thousands of dollars in shares of healthcare related companies, which he could influence through legislation he sponsored or killed.  Bharara was asked to resign with the other attorneys, but Bharara refused, wanting to see through the investigations.  As a result, Trump fired Bharara.

 

Sally Yates was the second firing that didn’t look on the up-and-up.  Ms. Yates was Acting Attorney General and was asked to support Mr. Trump’s Executive Order induced travel ban.  Instead she held fast to her understanding of the law and upheld the promises in the constitution and did not support the order.  Trump viewed this as an act of insubordination and terminated Ms. Yates.  This looked like a reasonable reaction at the time, but unbeknownst to the public was the Michael Flynn investigation and exactly what role Ms Yates had in that debacle to come.  The Acting Attorney General had informed Mr. Trump on the questionable nature of Flynn’s relations and of the subsequent investigation, including having Mr. Flynn’s conversations on intercept.  This just added fuel to the fire (pardon the pun).  Yates was out, and so was another investigator with knowledge of questionable activities within the Trump organization.

 

The final domino to hit the table was FBI Director James Comey.  Comey’s firing was a surprise, especially because of timing.  The White House trotted out the excuse of Comey’s handling of the Clinton investigation, but that just didn’t ring true.  Not when you compared Trump’s comments about Comey’s actions while the events were helping him to secure the Presidency.  Even when the White House produced the Rosenstein memo as justification.  Timing was still all wrong.  So finally it was Trump who took ownership of the termination and admitted it was because of his personal frustration with the Russia investigation.  Mr. Trump believed that if James Comey were removed from the equation the investigation into Trump’s connections to Russia would just quietly disappear.  This appears to be not only a gross over-estimation on Mr. Trump’s part, but also the most glaring example of possible Obstruction of Justice.  Not only did Mr. Trump initially lie about the intentions of the firing, he admitted the reason was to make the investigation go away.

 

What makes matters even worse for Mr. Trump is the next section of the law, and his tweeting habit.

 

18 U.S. Code § 1513 - Retaliating against a witness, victim, or an informant

Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.

 

Trump’s tweet to Comey is no doubt a threat.  This section of the law is where the possible follow through of that threat would come into play.  While there is no immediate follow through to consider, the future prospects for Mr. Comey would have to be monitored for possible retaliation.

 

18 U.S. Code § 1516 - Obstruction of Federal audit

Whoever, with intent to deceive or defraud the United States, endeavors to influence, obstruct, or impede a Federal auditor in the performance of official duties relating to a person, entity, or program receiving in excess of $100,000, directly or indirectly, from the United States in any 1 year period under a contract or subcontract, grant, or cooperative agreement, or relating to any property that is security for a mortgage note that is insured, guaranteed, acquired, or held by the Secretary of Housing and Urban Development pursuant to any Act administered by the Secretary, or relating to any property that is security for a loan that is made or guaranteed under title V of the Housing Act of 1949, shall be fined under this title, or imprisoned not more than 5 years, or both.

 

This may be a reach, especially when this is read in full context, but if there is obstruction during an audit – in any shape or form – may be considered Obstruction.  Trump famously has claimed his taxes have been tied up in audit, and as a result refuses to release those very documents that would answer so many pressing questions, so if there is any influence to impede or slow the audit process to protect those documents, that could be construed as Obstruction in relation to a Federal audit.

 

As I said, I am not a lawyer, and it has been a really strange week in Washington, but there certainly looks to be enough prima facie evidence to consider at least warning the White House of Obstruction of Justice charges at this point.  Personally, I think there is enough there to get Congress considering their next logical course of action, which is likely drafting Articles of Impeachment for High Crimes and Misdemeanors.  With the firing of three people who were investigating Mr. Trump, and the subsequent tweet storms, there is enough of a smoking gun there for Obstruction of Justice charges.  The only question I have, is how far out does the web expand, and who else goes down with the sitting President?

Dr. Bryson is an adjunct faculty member at Fielding Graduate University, teaching classes in media and political psychologies.  He is the author of the book, The Trump Card: The Long Game of Discrediting Media and Influencing Elections.