April 25, 2019: Failed Trump Attempt to Obstruct Justice Still Obstruction of Justice

 

4/25/19: According to President Trump, the Mueller Report has cleared him of any and all wrongdoing.

 

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“The obstructer need not succeed in order to be charged with obstruction.” 

Judge Andrew Napolitano

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Not everyone is buying that construct. One who disagrees is Judge Andrew Napolitano, longtime legal expert on Fox News. We are guessing he won’t be seen much longer on that channel. 

Napolitano is clear and concise in his explanation and it’s worth reading: 

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the “high crimes and misdemeanors” rubric because both presidents in the modern era who were subject to impeachment proceedings – Richard Nixon and Bill Clinton – were charged with obstructing justice.

 

Obstruction is a rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

 

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

 

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump – from asking former Deputy National Security Adviser K.T. McFarland to write an untruthful letter about the reason for Flynn’s chat with Kislyak, to asking Corey Lewandowski and then-former White House Counsel Don McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI’s investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

 

The essence of obstruction is deception or diversion – to prevent the government from finding the truth [emphasis added]. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

 

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr’s view requires that the obstructer has done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

 

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

 

Read the Mueller Report yourself. If you’re not blinded by right-wing propaganda, you’ll quickly discover that the President of the United States made repeated efforts to thwart a legal investigation.

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As anyone would expect, Trump reacts badly to the judge’s comments – and decides to add a fresh layer of lies and insults to his story. Judge Napolitano points out that he and the president “have been friends for thirty years.”