Presidential Obstruction of Justice

Critics of President Trump are wailing that the president has obstructed justice by firing former Director of the FBI James Comey during the ongoing investigation of Michael Flynn. Supposedly Lieutenant General Flynn had subversive contacts with the Russians, and then lied about it. Flynn was properly fired for the lying. With no solid evidence of collusion with the Russians, the President’s critics in the media have now turned to whether President Trump is guilty of obstructing justice in the various Russian related investigations.

Preet Bharara, a former US Attorney and outspoken critic of the President, says there is absolutely evidence to start an obstruction of justice case.

Constitutionally, investigating the President is a complicated matter. Article II and many years of case law give the President prosecutorial discretion. Every federal prosecutor, the Attorney General, the Director of the FBI, and even recently appointed Special Counsel Robert Mueller, works for, and can be fired by the President. In addition, the President has the authority to pardon anyone for anything they did or didn’t do (unless they have been impeached), which immediately prevents prosecution. It’s pretty tough to prosecute the president for exercising his constitutional authority.

There are few historical examples of presidential obstruction of justice. Not only did Nixon break into the offices of the DNC, but he refused to respond to a congressional subpoena for the unedited tapes and transcripts of Watergate related conversations. Those tapes ended up revealing Nixon’s personal involvement in both the crime and the cover up. The federal prosecutors guiding the grand jury empaneled to investigate the Watergate case told the jury that they did not have the authority to indict a sitting president, impeachment was the only remedy. The grand jury therefore named Nixon as an “unindicted co-conspirator” and turned their findings over to the House Judiciary Committee, who began impeachment proceedings for obstruction of justice, abuse of power, and contempt of Congress. Nixon resigned before the articles of impeachment came to a vote in the House.

Bill Clinton was impeached for both perjury and obstruction of justice. Independent Counsel Kenneth Starr was originally engaged to investigate the Clinton’s business dealings as part of the Whitewater Development Corporation. With the approval of Attorney General Janet Reno, Starr expanded his investigation to include a wide range of alleged abuses, including the firing of the White House travel agents, misuse of FBI files, and Clinton’s conduct during the sexual harassment lawsuit brought by Paula Jones. Linda Tripp provided Starr with a recorded phone conversation in which Monica Lewinsky described her sexual relationship with the President. Under oath in the Paula Jones case, Clinton testified he had not had sexual relations with Lewinsky. Clinton was impeached for perjury and obstruction of justice. However, after the trial in the senate he was acquitted, and remained in office to the end of his term.

During the Iran-Contra affair, Oliver North, a member of Reagan’s National Security Council, was convicted of aiding and abetting in the obstruction of a congressional inquiry, and ordering the destruction of documents. Casper Weinberger, Reagan’s Secretary of Defense was indicted on two counts of perjury and one count of obstruction of justice for his role in the affair. The Tower Commission and Congress both investigated the matter, but concluded that President Reagan did not have knowledge of the diversion of funds to the Contras. North’s conviction was later vacated, and President George H.W. Bush, who had been Reagan’s Vice-President, pardoned Weinberger before his trial began. Regan’s role is not definitively known, and Reagan avoided impeachment, but took a major hit in the polls of approval ratings after he gave a speech taking responsibility for his own actions and of those in his administration.

The Obama administration had it’s own brush with obstruction in the ATF gunwalking scandal often referred to as “Operation Fast and Furious”. The ATF illegally forced licensed gun dealers to break the law by selling weapons to straw buyers, in the hopes that they could track the weapons to drug cartels in Mexico. These illegally sold weapons were found at crime scenes on both sides of the border, and at the scene of the killing of Border Patrol Agent Brian Terry. The House Committee on Oversight and Government Reform subpoened many documents from the Department of Justice, in an attempt to determine who in the administration knew of and sanctioned this illegal activity. Some documents were provided, Attorney General Eric Holder refused to provide some documents, and President Obama claimed executive privilege over others. Holder was held in contempt of Congress, and after 4 more years of legal battles, U.S. District Court Judge Amy Berman Jackson, an Obama appointee, rejected Obama’s claim of executive privilege. At this point, it’s unlikely that either Obama or Holder will be indicted.

Investigations of this nature tend to proceed at a glacial pace. Kenneth Starr worked for 4 years on the Clinton case. Nixon resigned more than 2 years after the break-in at the Watergate office complex. The first arms sales to Iran took place in the summer of 1985, but it wasn’t publically reported until November 1986. Regan’s speech was in Mar 1987, North’s trial wasn’t until 1989, and Wienberger was pardoned in December of 1992, 7 years after the original events. The first gunwalking events of the Obama administration happened in 2006, Congress didn’t start investigating until 2011, and Holder was held in contempt in the summer of 2012.

Trump has been in office for less than 6 months. Despite all the caterwalling in the media, we know very few facts about alleged Russian involvement in either the election, or with the Trump campaign. The President’s duties require him to have some level of engagement with and discussion about the Russians, so any wrong doing must have occured before the inauguration.

The FBI has been investigating the Russian matter for almost a year. Special Counsel Rober Mueller has now taken over the FBI’s investigation. The Senate Select Committee on Intelligence is investigating Russia’s active measures in the spread of disinformation in the US. Perhaps they should expand their investigation to include CNN and the New York Times which have both have published anonymously sourced, incorrect reports on Russian involvement. The House Intelligence Committe and the House Oversight Committe also have open investigations.

If we do know anything factual and compelling about Russian involvement with Trump, his campaign, or his associates, it hasn’t leaked yet. It seems likely that Flynn made some bad decisions, and maybe even broke the law. Unlike Nixon, Reagon, Clinton, or Obama, who all used their power to protect underlings who broke the law, Trump immediately fired the alleged offender. It remains to be seen whether this was an act of enforced personal accountability or self-preservation.

The wild-eyed liberals of the resistance have a stated objective of removing Trump from office. That would require not only impeachment, but a two-thirds majority vote in the senate to convict.

Which has never happened before. The investigations are still in the early months. Let’s wait an see.

One final piece of political irony: Ken Starr was criticized by Democrats for spending $70 million on an investigation of Bill Clinton that substantiated only perjury and obstruction of justice.