Thread by @kurteichenwald

1. The most frustrating thing in America today is that everyone considers themselves an expert on everything. Thanks, Google.

Unfortunately, that "expertise" is defined by what people WANT to believe, not by the facts.

So we need to discuss the law on obstruction....

2...now, am I an expert on obstruction? Not as much as many. But have I lectured at law schools on the application of obstruction laws? Have I written a book about one of the biggest, law-defining obstruction cases? Yes on both counts.

So, the info. The concept that....

3...an obstruction charge must contain within it the underlying crime turns the entirety of criminal law on its head. There is nothing to this in statute or precedent. The entire idea would reward those whose obstructions are successful. They also would reward obstructions....

4...where what the obstructor is trying to hide from investigators is not the basis of the investigation. I have always believed that was the case with Trump - he has long been a financial crook, a perjurer and a fraud. Anyone who honestly reviews documents from his past cannot..

5...dispute this. But does a prosecutor need to prove that to establish an obstruction? Does a prosecutor need to prove WHY someone is obstructing or not bring the charge? Absolutely not. There is NO element of "underlying motive must be found" in an obstruction case, because...

6...the underlying motive might only be known to the obstructor. So...a quick lesson in law...

All of this pertains to 18 USC § 1503's "omnibus" clause. Originally, courts held that the statute would seem to be satisfied by proof that a defendant (1) "corruptly"; ....

7. (2)"endeavored" (3) to influence, obstruct 4. The due administration of justice....but there is more...

In 1893, in Pettibone v. US, SCOTUS added two more elements: (5) the defendant must know that a judicial proceeding is pending; and (6) must intend to obstruct justice....

8...now, have there ever been criminal cases on obstruction brought without the underlying crime? Yes: Martha Stewart, Arthur Andersen, Scotter Libby to name a few. Again, if the Republicans have their way, the jail doors will have to fly open and lots of people will have to be..

9...let out, and obstruction under the omnibus section would only be a flag waving to obstruct justice MORE. After all, if you succeed, there is no underlying crime. If you are hiding something that prosecutors don't discover, then you get off scot free. This entire concept...

10..being advanced by the Republicans is SOLELY about party. And we cannot, should not, twist our laws to abandon precedent and meaning simply to satisfy our short term party affiliations. Was Trump attempting to hide things about his business deals? I think so. Do I know? Nope..

11...under law, do i need to prove that to prove an obstruction. Nope. There is a concept "the thing itself." Obstruction is the thing itself. They very act conveys that the obstructor either has something he wants to hide from prosecutors, or he is insane. That is why the act...

12...itself is per se the crime.

Now, when I discuss law, Republicans first check party and then make their argument. So, let's stick with what Scalia has written about it.

In the Aguilar case in 1995, Scalia wrote....

13..."The 'omnibus clause' of ' 1503, under which respondent was charged ... makes criminal not just success in corruptly influencing the due administration of justice, but also the 'endeavor' to do so.... it is even immaterial whether the endeavor to obstruct...."

14..."pending proceedings is possible of accomplishment." Further, "As we said in Russell, 'any effort or essay' corruptly to influence, obstruct, or impede the due administration of justice constitutes a forbidden endeavor, even, as we held in Osborn,..."

15..." an effort that is incapable of having that effect." Now, Scalia's language is not the best on this issue, although he sides with the very point I am making. He was even tougher on obstruction than most.

But the bottom line: There is not, cannot, and never should be.....

16...a standard that obstruction cannot be charged if an underlying crime cannot be charged. Did Trump dangling his approval and implied pardon to Manafort lead him to not cooperate? Dont know. Was that obstruction? Maybe. If Manafort properly cooperated, would there have been...

17...an underlying charge to bring? Maybe. THIS is why obstruction cannot have an "underlying charge" requirement. Because it requires prosecutor not to simply prove the person has impeded, BUT that the obstructive effort was unsuccessful AND the full motive for the obstruction..

18...was known. And that is an impossible standard to always have. It is a federal crime to impede a regulatory body, under the same section of law. And there is certainly no "underlying crime" in dealing with the regulatory body. They can't bring criminal charges.

Did Trump...

19...obstruct? There are 10 allegations that he did. Would he have been charged with obstruction if he was a private person? No doubt in my mind. Would he have been charged with an underlying crime? Maybe - maybe he was obstructing was the Cohen crime where he got listed....

20...who knows what the motive was? More important, who cares? If Trump obstructed, he had a motive, even if we can't discern it. The act of obstruction proves that in and of itself....

21...or as Scalia wrote: "it is quite proper to derive an intent requirement from ' 1503’s use of the word 'endeavor.'” What that means: If you try to obstruct, we can infer you had a reason. We DONT need to figure out what your reason was.

That is the law.....

22...the law doesnt change if you are Republican or a Democrat. We cannot have a system that rewards successful obstruction, nor should we have a system that allows for the belief to spread that impeding official proceedings is a legally available option, "existential" or not...

23...the contempt that has been demonstrated for the law simply so "our team needs to win!" will have lasting and horrible repercussions on this country long into the future, and long past Trump is gone. We cannot bend standards simply because some imbecile on Fox declares....

24...that the law says what it does not, particularly when you know if the exact same set of facts existed for Obama, they would be saying the opposite of what they say now.

Would I say the opposite? Nope. Because I believe in the law.