(THREAD) Last June, I and some others said Mueller had a "prima facie" case on Trump for Obstruction—that is, a case that's evidently correct unless proven otherwise. Today, that's the consensus. But Obstruction is more confusing than some realize. Here's a thread on why that is. 
2/ On June 8, a day after I wrote about bringing an Obstruction case against Trump under one of the several means to do so—18 U.S.C. § 1512(b)—the New York Times posted a helpful note on the various subsections of the Federal Code that prohibit obstructing an official proceeding. 
3/ 18 U.S.C. § 1503 prohibits "corruptly endeavoring to influence any officer of any court in the discharge of his duty." This is the most direct way to charge someone, and carries a maximum penalty of 10 years. law.cornell.edu/uscode/text/18…
4/ You will often hear people say that Obstruction is a "specific intent crime."
"Specific intent" means that you intended your actions to achieve a specific result and desired that that specific result be achieved.
"Specific intent" means that you intended your actions to achieve a specific result and desired that that specific result be achieved.
5/ "Specific intent crimes" require that a prosecutor show "specific intent," considered the highest level of intent a prosecutor can have to prove in a case. Usually we see the words "intentionally" or "purposefully" in a statute when we're looking at a "specific intent crime."
6/ Working our way down from the highest level of intent, we next come to "general intent"—usually indicated in statutes by the word "knowingly." To "knowingly" do something is to appreciate the nature of your actions without necessarily intending them to cause a specific result.
7/ So if you stand in a crowd windmilling your arms and hit someone in the nose, "specific intent" means you intended to injure someone (whether or not that particular victim) by windmilling your arms; "general intent" simply means you were aware you were windmilling your arms.
8/ Other levels of intent include "recklessly" doing something and "negligently" doing something (I'm putting aside the complication of so-called "involuntary" statutes, crimes subject to a "duress" defense, and a "diminished capacity" to form intent caused by drugs or alcohol).
9/ So when people call Obstruction a specific-intent crime, which they do, they are saying the alleged obstructor has to have acted with the "specific intent" that their actions obstruct the administration of justice—whether or not (this is key) justice ended up being obstructed.
10/ But one thing you'll notice is that when people write articles about a possible Obstruction charge against Trump in the Trump-Russia case, they almost never say which statute they're referring to. So go back for a moment and look at 18 U.S. Code § 1503:law.cornell.edu/uscode/text/18…
11/ The language there—"corruptly endeavoring to influence any officer of any court in the discharge of his duty." 1512(b)(3) says "corruptly attempts to persuade another person with intent to prevent communication to a judge relating to possible commission of a federal offense."
12/ Meanwhile, 18 U.S. Code § 1505—the third federal criminal statute mentioned by the Times—prohibits "corruptly attempting to influence the proper administration of the law under which any pending proceeding is being had before any department or agency of the United States."
13/ The upshot is this: lawyers who write about Trump being charged with Obstruction always focus on the word "corruptly"—because that's a constant in all the statutes potentially in play—but never name a statute, because there are other elements that differ between the statutes.
14/ Here's how confusing it all is: because we don't know what evidence Mueller will rely upon, and because we don't even know all the evidence he has, and because we technically don't even know which statute he'll focus on, many disagree on where we are: vox.com/2018/1/25/1686…
15/ I'll say this: the Dershowitz argument—that a president can't break the law when exercising his constitutional authority—is false. No one else says this or believes it. A president can exercise his constitutional authority is every way BUT corruptly—this is a legal certainty.
16/ A basic principle of constitutional and statutory interpretation is this—a court will *never* interpret the U.S. Constitution or a statute in any way that renders it nonsensical. The Constitution would be nonsensical if it explicitly authorized the president to commit crimes.
17/ What this means is that Trump CAN fire James Comey because he doesn't like his fashion sense—Comey is in the Executive Branch of government, and Trump runs the Executive Branch. But Trump CANNOT fire Comey if his intention is to obstruct the proper administration of justice.
18/ 1503—"corruptly endeavor to influence an officer of the court in his duty"
1505—"corruptly attempt to influence administration of the law in pending proceeding"
1512—"corruptly attempt to persuade a person with intent to prevent communication to a judge commission of a crime"
1505—"corruptly attempt to influence administration of the law in pending proceeding"
1512—"corruptly attempt to persuade a person with intent to prevent communication to a judge commission of a crime"
19/ You can see that 1512 is the highest bar in some respects—it says "persuade," not "influence," which is more specific; it says "with intent to prevent communication," whereas the other two don't require that intent or aim—but on the other hand it does seem to fit these facts.
20/ Some falsely say there was no "official proceeding" pending at the time Trump had his conversations with Comey. But in fact, even if the FBI had brought no charges against anyone yet, and had no grand jury, it was still before the FISA court seeking (and receiving) warrants.
21/ It doesn't matter if Trump knew or didn't know that the FBI was already before a court on its broader investigation into Trump-Russia ties. And it shouldn't matter that Comey hadn't been before a court yet—we don't think—on Flynn, as Flynn was part of a broader investigation.
22/ Moreover, there's a chance—though we don't know this—that the FBI may have been before a court at some point in its surveillance of Kislyak, or as part of the unmasking of Flynn which came as a result of the counter-intelligence capture of Kislyak's telephonic communications.
23/ Generally speaking, FBI agents aren't officers of the court (that refers to judges, prosecutors, defense attorneys, or attorneys for a civil party). That's why 1505 is what we're looking at—unless Comey is seen as a "witness" (because he's an FBI agent, not a DOJ prosecutor).
24/ For this reason, 18 U.S. Code § 1515 suddenly becomes important—because it offers us the *definition* of "corruptly" as it is used in 1505. Here's the definition: "acting with an improper purpose...by...concealing information." So what would the concealed information be here?
25/ Well, the "improper purpose" Trump would have for trying to convince FBI Director Comey to drop the Flynn case and stop investigating his (Trump's) ties to Russia is pretty clear: protecting himself from prosecution—and thus, presumably, concealing that had committed a crime.
26/ So here are the major problems I have with the Obstruction analyses I've seen so far:
(a) They don't specify statute.
(b) They don't acknowledge that statutes differ.
(c) They don't acknowledge some are harder to prove than others.
(d) They don't clarify the issue of intent.
(a) They don't specify statute.
(b) They don't acknowledge that statutes differ.
(c) They don't acknowledge some are harder to prove than others.
(d) They don't clarify the issue of intent.
27/ Under 1505, the only "specific intent" Trump would have to have would be (a) the aim of influencing a pending case, (b) to protect himself from prosecution—which, as I said last June, we already have from just *two pieces of evidence* that are more or less incontrovertible.
28/
PIECE OF EVIDENCE 1: Comey says, contemporaneously memorialized, and told others Trump at a minimum tried to "influence" him on whether to charge Flynn.
PIECE OF EVIDENCE 2: Trump told NBC he fired Comey because "this Russia thing with Trump and Russia is a made-up story."
PIECE OF EVIDENCE 1: Comey says, contemporaneously memorialized, and told others Trump at a minimum tried to "influence" him on whether to charge Flynn.
PIECE OF EVIDENCE 2: Trump told NBC he fired Comey because "this Russia thing with Trump and Russia is a made-up story."
29/ The first piece of evidence is inarguably an effort to "influence" Comey's pending Flynn investigation; the second piece of evidence shows Trump's awareness that *he himself* was caught up in the Russia probe and was therefore in possible legal jeopardy from its continuation.
30/ So on those facts *alone* Mueller would have proof of an "attempt to influence" and an "improper purpose" for attempting to influence. This is not to mention Trump telling the Russians that firing Comey "took pressure off him"—*more* proof of Trump's clearly improper purpose.
31/ And it goes without saying we have *much* more evidence of the "attempt to influence" (trying to get Sessions to recuse himself, pressuring Congress to drop its probes) and "improper purpose" (asking Comey to pledge loyalty to *him* rather than the Constitution or U.S. laws).
32/ If the case were under 1503 (assuming Comey were somehow treated as an "officer of the court") it'd be just as easy: all you'd need is "endeavoring to influence for an improper purpose." Under 1512? An improper purpose for trying to keep Comey from bringing Flynn into court.
32/ With all this in mind, I turn to Renato's article today in POLITICO: politico.com/magazine/story…
33/ Renato believed and wrote on June 8—as did I—that an average person would almost certainly be charged with Obstruction on these facts. Unlike Renato, I didn't and don't think a federal prosecutor has right or authority to treat a president differently from an average citizen.
34/ Federal prosecutors are political beings—they're influenced by politics and sometimes end up running for political office. So they're sometimes wrongly swayed by the political implications of their decisions. But there's zero support in the law or Constitution for doing this.
35/ From Day One on this feed, I've analyzed the Trump-Russia case under the (correct) presumption all citizens are equal under U.S. law—including presidents. While the Constitution gives POTUS special authority, as we've noted that authority does NOT extend to committing crimes.
36/ So I, and you, and EVERYONE should dismiss any part of any legal analysis that says a president gets more leash to commit a crime without being prosecuted than the average citizen does—that's a political calculation that benefits the rich and powerful and has no basis in law.
37/ Here's the second paragraph of Renato's piece in POLITICO: 
38/ The word "prudent" here means "political"—Renato is, quite understandably, speaking of a prosecutor who wants to keep his or her job and (moreover) possibly advance in their legal career or make the jump into politics. But let's be clear—such an analysis isn't based in *law*.
39/ In Renato's defense, he cites the Dershowitz Defense as a basis for thinking Trump might get more leeway in firing Comey. But that defense is a binary (either right or wrong). If being POTUS doesn't permit you to commit crimes, POTUS is no different from a citizen under 1505.
40/ Any jury looking at Obstruction for Trump would bifurcate the issues:
1) Can a POTUS commit crimes if he's exercising constitutional authority?
2) If not—and the answer is indeed "no"—did Trump violate 1505 under the same standard as would be applied to the average citizen?
1) Can a POTUS commit crimes if he's exercising constitutional authority?
2) If not—and the answer is indeed "no"—did Trump violate 1505 under the same standard as would be applied to the average citizen?
41/ Where I think Renato *does* have a point is in implying that referring an indictment against a president is *in the first instance* a political issue—as a sitting president can't be indicted (he must be impeached first). So a prosecutor might well *have* to consider politics.
42/ But Mueller isn't a prosecutor—at least as to Trump—he's an investigator. His decision will be on whether Trump violated the law. Likewise, Rosenstein (DOJ) is simply charged with deciding whether Trump violated the law.
It's CONGRESS that will make political calculations.
It's CONGRESS that will make political calculations.
43/ So the "prudent" prosecutor Renato describes (a) wouldn't be Mueller, who must simply look at the law and refer to DOJ, and (b) isn't Rosenstein at DOJ, because *he* wouldn't be the prosecutor of Trump in the first instance (i.e., at an impeachment). Thus, Renato errs, here.
44/ So I go back to my point that there's no "prudent prosecutor" at the FBI or DOJ who must—or even can—take politics into account here, and that that sort of "prudence" (if it arose) would just be a Special Counsel or DOJ lawyer making a political calculation *for themselves*.
45/ I think Renato also errs in equating "impeding" and "influencing" the administration of justice. He admits both words can apply to 1505, but the moment he moves to the question of intent he opts for the *higher* standard—"impede." This is where—I fear—politics is creeping in.
46/ Unless he or she is making a political calculation inapplicable to an average citizen, no prosecutor opts for a higher mental state in a case than they're required to prove. "Intent to influence" and "intent to impede" are both "specific intent"—the latter is harder to prove.
47/ Consider: "intent to impede" might require a prosecutor to show that Trump wanted to *shut down the entire Trump-Russia probe permanently*.
"Intent to influence" is proven the *moment* Trump knowingly inserts himself into the issue at *all*—even if it's entirely haplessly.
"Intent to influence" is proven the *moment* Trump knowingly inserts himself into the issue at *all*—even if it's entirely haplessly.
48/ So when Renato says of Trump's comments to NBC, "Trump followed them up by indicating he thought the investigation was bogus—his defense to obstruction could be he genuinely believed the Russia investigation was meritless." No! It couldn't be. Not under "intent to influence."
49/ So what I see some federal prosecutors doing here is—with the best intentions—arrogating to themselves the "political calculations" that are *Congress' to make*, and thereby making the Obstruction case against Trump *much* harder to make out than it actually is under the law.
50/ It's literally *no defense whatsoever* under 18 U.S. Code § 1505 to say "I thought the investigation of me was stupid!" Imagine for a moment if citizens charged with obstructing investigations into them could say, "Well, I thought it was bullshit, so why can't I obstruct it?"
51/ Renato even says Trump could defend himself by saying he "didn’t understand the consequences of firing Comey." No—he couldn't. As long as he understood he was talking to the federal agent working on Flynn's case and hoped to "influence" that person as to that case, it's over.
52/ What I think Renato does a great job of is showing how Mueller can make his Obstruction case against Trump *as strong as possible*—but that is *entirely* separate from the question of whether Mueller had a "prima facie" Obstruction case on Trump in June 2017. He did. He does.
53/ Here's why this matters:
(1) Trump wants to fire Mueller.
(2) If Mueller refers Obstruction, he comes unfireable.
(3) If Mueller artificially raises the bar for Obstruction, he might never refer it.
(4) If he delays referring it, he'll be fired before he can.
See the issue?
(1) Trump wants to fire Mueller.
(2) If Mueller refers Obstruction, he comes unfireable.
(3) If Mueller artificially raises the bar for Obstruction, he might never refer it.
(4) If he delays referring it, he'll be fired before he can.
See the issue?
54/ We always wonder why the rich and powerful get away with things the rest of us couldn't. What this thread has been about is breaking down the Obstruction case against Trump to show that how we're discussing it perfectly explains why the rich and powerful get better treatment.
55/ *This* is why—not to be salacious, or to get more widely read, or to get ahead of a story—I said last June Trump was guilty of Obstruction.
As a former public defender—not a federal prosecutor with a "political" mind—I proudly look *only* at the law, *not* at the defendant.
As a former public defender—not a federal prosecutor with a "political" mind—I proudly look *only* at the law, *not* at the defendant.
NOTE: This thread continues here:
PS/ A smart reader notes Mueller could choose to test the "you can't indict a sitting POTUS" presumption by indicting Trump *now* and going all the way to SCOTUS to *test* the Dershowitz Defense. If he wins, he declaws Trump allies dramatically at subsequent impeachment hearings.
NOTE/ I like and respect Renato. In noting federal prosecutors have to be political beings to avoid being fired, I'm not impugning anyone's character—the reality is the reality, and no individual federal prosecutor could change it. But that culture has dangerous implications now.
