President Trump- The Implications

[erfalf]

No crime is required for obstruction.

However, not only is there definitely wrong doing related to the obstruction in this case, there's now a guilty plea. Remember? Trump asked Comey to stop the Flynn investigation and then fired Comey when he didn't. Flynn has now pled guilty as part of the investigation. There's a reason that charge was the one that was kept. It seals the obstruction charge and links it to a conviction.

And Trump was stupid enough today to Tweet he had to fire Flynn because he lied to the FBI, which means he knew there was a crime when he asked Comey to drop the investigation into Flynn.

Thank you for confirming that the whole of the investigation to date hinges on someone lying about something that wasn't illegal and some dodgy money laundering many years prior to the campaign.

It's not obstruction to instruct people beneath you what to do.

[patric]

It's not obstruction to instruct people beneath you what to do.

Like it wasnt murder to exterminate millions because der Führer gave the orders.

[erfalf]

Like it wasnt murder to exterminate millions because der Führer gave the orders.

I know, I know, liberals never exaggerate or conflate two things that are absolutely not the same thing. You've made a point, it just doesn't add anything to this discussion.

[Hoss]

So now, Trump's lawyer seems to indicate that since he is President, he can't obstruct justice (meaning it doesn' t apply to him).  Sounds kinda Nixonian, dontcha think?

[erfalf]

So now, Trump's lawyer seems to indicate that since he is President, he can't obstruct justice (meaning it doesn' t apply to him).  Sounds kinda Nixonian, dontcha think?

It sounds like what a good attorney would say. You don't accuse or charge the chief military officer in this country with a crime unless you are damn sure one happened, and that it ain't some ticky tacky crime.

[Hoss]

It sounds like what a good attorney would say. You don't accuse or charge the chief military officer in this country with a crime unless you are damn sure one happened, and that it ain't some ticky tacky crime.

Wow, you're gonna go with that?

Ok....

[cannon_fodder]

It's not obstruction to instruct people beneath you what to do.

Hopefully Trump isn't relying on your statement as a defense.  I have no opinion on whether or not the President did anything illegal, for the purposes of me watching this discussion it doesn't matter.  But if you are going to discuss that particular possibility, lets get the knowledge out there.

Obstruction is basically undertaking "any effort or essay" with the intent of stopping or hindering a federal investigation.  The effort can be some form of improper influence, intimidation, or even a false statement.  Like many federal criminal statutes, it can be interpreted very broadly.  Here is a jury instruction:

8.131 OBSTRUCTION OF JUSTICE—
OMNIBUS CLAUSE OF
18 U.S.C. § 1503
The defendant is charged in [Count _______ of] the indictment with obstruction of justice in violation of Section 1503 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant influenced, obstructed, or impeded, or tried to influence, obstruct, or impede the due administration of justice; and
Second, the defendant acted corruptly, or by threats or force, or by any threatening communication, with the intent to obstruct justice.

Comment
See Comment at Instruction 3.15 (Corruptly—Defined).
If the corrupt act at issue involved the making of a false statement, materiality of the false statement is a required element of the crime. See United States v. Thomas, 612 F.3d 1107, 1123-
24 (9th Cir.2010).
As used in Section 1503, "corruptly" means that the act must be done with the purpose of obstructing justice. United States v. Rasheed, 663 F.2d 843, 851 (9th Cir.1981).
"The 'omnibus clause' of § 1503, . . . provides: '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 administration of justice, shall be [punished] . . .'" United States v. Aguilar, 515 U.S. 593, 609-10 (1995)

http://www.rid.uscourts.gov/menu/judges/jurycharges/OtherPJI/9th%20Circuit%20Model%20Criminal%20Jury%20Instructions.pdf

Also:
https://www.law.cornell.edu/wex/obstruction_of_justice

There is also a solid historic president for charging a president with obstruction for trying to cover up the acts of subordinates:  Article 1 of the impeachment of Nixon:

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities

Empahsis added.

And there doesn't have to be an underlying crime - Martha Stewart was convicted of obstruction, and never charged with the underlying crime.

Also, don't forget that Starr charged Clinton with obstruction of justice, in part for for telling subordinates to say he never had intimate contact with Lewinsky.  And the Republicans cheered and cheered.   If they want to now argue that the Obstruction charge is too broad, or the "investigations" are never ending, they won't get much sympathy after being investigation happy during the last 2 DNC Presidents.  That doesn't mean Republicans are wrong, but as a matter of politics they painted themselves in a bit of a corner.

When the president does it, that means it is not illegal.

As far as a President being immune from Obstruction of Justice, that's seems like a desperation argument.  Nixon and Clinton were both impeached for obstruction.  So far as I know, there is no binding president on whether or not a sitting President can face criminal prosecution.  Clinton was sued civilly while sitting and that was upheld, but there was never a binding ruling on other matters.  Nixon was going to face criminal charges, but stepped down and was then pardoned.   So it really isn't clear if the President is above the law or not.

However, seeing the President's lawyer reduced to arguing about who sent what tweet and whether or not his client can be held accountable under the law is not a positive development for the Administration.


The Brookings Institute has a painful well researched memo on these topics, go read the executive summary and follow up on citations if you want:
https://www.brookings.edu/blog/fixgov/2017/10/10/did-president-trump-obstruct-justice/
https://www.brookings.edu/wp-content/uploads/2017/10/presidential-obstruction-of-justice-the-case-of-donald-j-trump-final.pdf

[erfalf]

Wow, you're gonna go with that?

Ok....

Do you disagree. Well, at least with the last part. You don't just charge the highest ranking military officer with perjury or lieing to the FBI. And you sure don't charge him with obstruction when all accounts show that nothing in regard to the investigation was hindered by the pardoning of Comey, which in hindsight was the right thing to do.

As cannon mentioned, there is a difference between impeachment hearings and legal hearings. Filing impeachment charges can and are done for a myriad of things that really can have little base in reality. It's political.

[erfalf]

Cannon, the really difficult part, as they may have mentioned (long read, not even close to done), is proving intent. The actions alone will not be enough to prove obstruction. They must prove Trump was doing something corrupt. Commenting honestly on this at this point is really useless, as much of the "record" is heresay, un-named sources, and in general a lot of stuff that may not be admissible to a grand jury. Admittedly there may be someone out there that could shed light on it, that will for Mueller go under oath and has first hand knowledge. But at this point, I find that a rather monumental task with imperfect information.

Also, what investigation was he actually interrupting? If it was just part of routine FBI counterintelligence, then it becomes much harder to prove obstruction. Maybe there was a case, but I'm not aware of it. Again, information at this point is not all public. I am only commenting on publicly available information.

[Hoss]

Cannon, the really difficult part, as they may have mentioned (long read, not even close to done), is proving intent. The actions alone will not be enough to prove obstruction. They must prove Trump was doing something corrupt. Commenting honestly on this at this point is really useless, as much of the "record" is heresay, un-named sources, and in general a lot of stuff that may not be admissible to a grand jury. Admittedly there may be someone out there that could shed light on it, that will for Mueller go under oath and has first hand knowledge. But at this point, I find that a rather monumental task with imperfect information.

Also, what investigation was he actually interrupting? If it was just part of routine FBI counterintelligence, then it becomes much harder to prove obstruction. Maybe there was a case, but I'm not aware of it. Again, information at this point is not all public. I am only commenting on publicly available information.

My whole beef right now has nothing to do with whether or not he obstructed; that will be meted out during the investigation.  I have a problem with his attorney stating essentially that since he's President, he's immune from being accused or brought up on charges of obstruction.  As I said, that sounds Nixonian.  And we all know how that turned out.

[Conan71]

No crime is required for obstruction.

However, not only is there definitely wrong doing related to the obstruction in this case, there's now a guilty plea. Remember? Trump asked Comey to stop the Flynn investigation and then fired Comey when he didn't. Flynn has now pled guilty as part of the investigation. There's a reason that charge was the one that was kept. It seals the obstruction charge and links it to a conviction.

And Trump was stupid enough today to Tweet he had to fire Flynn because he lied to the FBI, which means he knew there was a crime when he asked Comey to drop the investigation into Flynn.

So let me get this straight, the boss fires a subordinate for lying to the FBI and that amounts to obstruction of justice?  IIRC, Flynn lied to the entire transition team, including Pence.  All Trump has to say is: "This clearly was a bad choice and Michael Flynn turned out he wasn't someone we could trust, we were draining the swap, remember?"

It's like Scooter Libby, "See, Bush lied!" or "See, the Bush Administration lies!"  No, Scooter Libby lied and was punished, well until his sentence was commuted.

Flynn plead guilty for lying, not Trump.  I think this becomes another Libby situation and doesn't reach further at least not amounting to a felony charge against Trump.  I understand and appreciate everyone who hates Trump being POTUS being optimistic this will un-seat him prematurely.  It is going to have to be something pre-election that gets Trump, finally.  The Logan Act, IMO, is fuzzy enough that one could say anyone in a transition team would or should be authorized to have contact with a foreign government.  If you or I were trying to lobby Russia, it would be much more clear that you or I should not be trying to influence a foreign government. 

I usually don't approve of protracted investigations of sitting Presidents but in this case, if it keeps Trump distracted it might keep him from bucking things up too bad before we can vote him out in 2020.

[patric]

So let me get this straight, the boss fires a subordinate for lying to the FBI and that amounts to obstruction of justice?

I thought Swake answered that:

Trump asked Comey to stop the Flynn investigation and then fired Comey when he didn't.

My whole beef right now has nothing to do with whether or not he obstructed; that will be meted out during the investigation.  I have a problem with his attorney stating essentially that since he's President, he's immune from being accused or brought up on charges of obstruction.  As I said, that sounds Nixonian.  And we all know how that turned out.

Frost:  So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

Nixon: Well, when the president does it that means that it is not illegal.

Frost: By definition.

Nixon: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

http://landmarkcases.org/en/Page/722/Nixons_Views_on_Presidential_Power_Excerpts_from_a_1977_Interview_with_David_Frost

[Conan71]

Cannon, the really difficult part, as they may have mentioned (long read, not even close to done), is proving intent. The actions alone will not be enough to prove obstruction. They must prove Trump was doing something corrupt. Commenting honestly on this at this point is really useless, as much of the "record" is heresay, un-named sources, and in general a lot of stuff that may not be admissible to a grand jury. Admittedly there may be someone out there that could shed light on it, that will for Mueller go under oath and has first hand knowledge. But at this point, I find that a rather monumental task with imperfect information.

Also, what investigation was he actually interrupting? If it was just part of routine FBI counterintelligence, then it becomes much harder to prove obstruction. Maybe there was a case, but I'm not aware of it. Again, information at this point is not all public. I am only commenting on publicly available information.

If you look at Trump's career of paying off unions, politicians, and others prior to becoming POTUS, corruption is second nature to him.  He's lived and worked in a world where this was business-as-usual for him but national security interests generally were not at stake in his dealings.

In this particular case, I really don't see where telling the Russians to sit on ice for another month with the Obama sanctions or asking them to vote a certain way on a UN resolution were akin to starting WWIII.  It's weak, but it's all the Democrats have to go on and it is better than just admitting no one could get terribly excited about a tired, uncharismatic retread who was emblematic of BAU Washington.

Republicans are just as much to blame for helping create an environment where it has now become the norm to keep active investigations going of POTUS' of the opposing party.

[Hoss]

If you look at Trump's career of paying off unions, politicians, and others prior to becoming POTUS, corruption is second nature to him.  He's lived and worked in a world where this was business-as-usual for him but national security interests generally were not at stake in his dealings.

In this particular case, I really don't see where telling the Russians to sit on ice for another month with the Obama sanctions or asking them to vote a certain way on a UN resolution were akin to starting WWIII.  It's weak, but it's all the Democrats have to go on and it is better than just admitting no one could get terribly excited about a tired, uncharismatic retread who was emblematic of BAU Washington.

Republicans are just as much to blame for helping create an environment where it has now become the norm to keep active investigations going of POTUS' of the opposing party.

I'm not saying I disagree with you here; I didn't like Hillary at all as a candidate.

However, if getting a BJ in the WH and waffling on what the definition of 'is' is can be an impeachable offense, then how can obstruction of justice not be something impeachable?

I'm just curious how that works.  The political system in Washington (and now filtering down into the states) is broken.  It needs fixing soon.

[Conan71]

I thought Swake answered that:

But the felony charge leveled last week wasn't for firing Comey, now was it?  At best, we have Michael Flynn obstructing justice for lying to the FBI, that's not the same as POTUS Trump doing so.

Firing Comey is a non-starter.  During the Clinton email investigation, Democrats were screaming about his incompetence.  That makes it somewhat harder to claim his firing was an out and out obstruction of justice.  If that really were the case, those would have been a far easier charge for Mueller to bring and it's not been brought.  Instead he just hung an underling for lying to he FBI.  That's why this all seems really bizarre to me.  Comey was fired around the same time Mueller was tapped to head the Russia investigation.  That's been over six months ago.  Do we really think it could possibly take six months to bring those charges if it existed?  It seems like it would be pretty open and shut with Trump supposedly asking Comey to "forget the Flynn deal", yet six months later...nothing other than burning down a few of Trump's minions has happened.