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In two previous posts, I considered the applicability of two obstruction of justice statutes, 18 United States Code, Sections 1503 and 1512, to the conduct of Donald Trump in connection with his February 14, 2017, meeting with then-FBI Director James Comey and Mr. Comey’s subsequent firing.

I concluded that the technical requirements of both statutes might be met in Mr. Trump’s case, but that a prosecution under Section 1512(b)(3) or 1512(c) would be somewhat simpler than one under Section 1503.

I left for the present post the far more difficult question of whether a prosecutor could prove the mental state common to both Sections 1503 and 1512, which is that a defendant acted “corruptly.”

“Corruptly” – The culpable mental state for obstruction of justice

Before considering “corruptly” itself, it is useful to step back and, as it were, diagram the crime of obstruction of justice. All the obstruction statutes require that the defendant act in some way that has, or reasonably might have, the effect of halting, delaying, influencing, or perverting the course of justice, broadly defined as an actual legal or congressional proceeding or the judicial or administrative preliminaries to such a proceeding. The word “corruptly” serves a critical function in all such statutes because there is an infinitude of entirely legal acts that can influence, impede, delay, or obstruct (in the sense of slowing, making more difficult, or stopping entirely) legal proceedings.

For example, a private person may refuse a government official’s request for information in the absence of a subpoena, warrant, or other proper legal process, or remind others confronted with such a government demand that they have a right to decline. A corporation sued by the government surely delays, and may frustrate altogether, the government’s case by retaining counsel and defending the action. More to the present point, government officials themselves routinely delay or halt altogether legally meritorious claims. Every day government officials decide to delay, decline, or not investigate thousands of legally sustainable civil and criminal claims. Sometimes these are individual exercises of what we call “prosecutorial discretion” in which government officials balance the equities in particular cases. Sometimes they are policy choices such as not pursuing deportation of some classes of undocumented aliens or not prosecuting federally marijuana vendors operating in states that have legalized medical or recreational use of the drug.

The dividing line between legal behavior and criminal obstruction of justice is the mental state requirement that the defendant act “corruptly.”

 What does “corruptly” mean?

“Corruptly” is used in many federal criminal statutes, but it is a famously uncertain term, about which one court wrote, “There is no hope in one opinion of providing a definitive gloss on the word ‘corruptly’; neither would it be wise to try.”   Happily, we needn’t arrive at a single, all-embracing, definition of “corruptly.” For purposes of a possible obstruction prosecution of Mr. Trump for the Comey/Russia investigation, we need settle only a few basic points.

“Corruptly” is defined in 18 U.S.C. 1515(b) to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” Section 1515(b) limits this definition to use of the term in 18 U.S.C. 1505 (Obstruction of proceedings before, departments, agencies, and committees). It nonetheless seems reasonable to assume that this definition has at least persuasive force when construing the same term in Sections 1503 and 1512. Still, the operative core of the 1515(b) definition is that the defendant acted “with an improper purpose,” but that doesn’t really tell us very much. So we have to look at cases.

Acts illegal in themselves vs. Acts made illegal by corrupt intent

Let’s begin with a distinction between two kinds of defendant conduct: (1) acts which are themselves either illegal or self-evidently wrongful even if not technically illegal, and (2) acts which would be perfectly legal absent a corrupt motive.

Examples of the first category would be lying to a grand jury, United States v. Carson, 560 F.3d 566, 573 (6th Cir. 2009); forging a court order in a federal civil action (an act independently prosecutable under 18 U.S.C. 505), United States v. Reich 479 F3d 179 (2d Cir. 2007); bribing someone to withhold information from a criminal investigation, United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997); or requesting that a witness lie to a court or government agent in support of the defendant’s theory of the case, United States v. Petruk, 781 F.3d 438 (8th Cir. 2015), United States v. Khatami, 280 F.3d 907 (9th Cir. 2002). In these cases, the defendant not only acted in ways calculated to affect a proceeding, but employed methods so obviously wrong in themselves that the corrupt intention was plain.

The trickier cases are those in which the defendant’s acts are of a type not inherently wrongful, but are made criminal by his “corrupt” motive. The Supreme Court considered this sort of conduct in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), which involved the conviction of the accounting firm for destroying audit documents that might be sought by government prosecutors. The Supreme Court reversed that conviction because merely making information unavailable to the government, or persuading another to do so, is not necessarily illegal. For example, a lawyer may, entirely properly, advise a client to withhold documents under a legal privilege. Or a spouse may urge a marital partner to invoke a marital testimonial privilege. United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir. 2011). The jury instruction in Arthur Andersen was improper because it omitted any requirement that the act of withholding information be dishonest or wrongful.

As one lower court put it, the term “corruptly” is important because it requires “that jurors believe that the defendants were conscious of their wrongdoing.” United States v. Coppin, 569 Fed. Appx. 326 (5th Cir. 2014).

That said, courts routinely hold that otherwise legal conduct can amount to criminal obstruction if undertaken “corruptly,” in the sense of dishonestly, wrongfully, or immorally. United States v. Matthews, 505 F.3d 698, 704-708 (7th Cir. 2007). For example, a lawyer representing a criminal client has been found guilty of obstruction for using legal maneuvers to expose and frustrate an FBI undercover investigation into gambling activities in which both the lawyer and his client had large financial stakes. United States v. Cueto, 151 F.3d 620 (7th Cir. 1998).

Dershowitz and Gingrich are wrong (mostly)

Which brings us to the claims by Professor Dershowitz and former Speaker Gingrich that a president cannot commit obstruction of justice. Both men seemingly rest their arguments on the fact that the President of the United States has the legal power to perform the acts suspected to be criminally obstructive – requesting (or, if you prefer, obliquely ordering) the Director of the FBI to cease investigating General Flynn, and later firing that Director when the request was not honored.

The president’s power to fire the FBI Director is plain and derives from the Appointments Clause of Article II of the Constitution. The source of his power to stop a federal criminal investigation or prevent the filing of a criminal case is a little less obvious. Without getting too deep in the weeds, it flows from several related facts.

First, in the United States, prosecutors and policemen do not have a legal obligation to investigate every possible crime or to prosecute every provable crime. Instead, both policemen and prosecutors are vested with broad discretion to refrain from investigating or prosecuting criminal conduct.

Second, all of the investigative and prosecutorial officials involved in the Flynn/Russia investigation are presidential appointees who, as a constitutional matter, derive their authority from the president. Although there has arisen a well-understood norm that presidents should not directly intervene in criminal investigations or prosecutions, particularly if the case involves persons close to the president, that is a norm, not a rule.

Therefore, as a constitutional matter, it would appear that a president has the same authority as the Attorney General, the FBI Director, or any of their subordinates to decline even a legally meritorious prosecution. Likewise, if an FBI Director refuses an order, or even a strongly worded hint, that a case ought to be dropped, the president has the power to fire him because of his refusal.

Where Dershowitz and Gingrich miss the boat is in implying that the existence of such presidential power resolves the question of obstruction. Merely because a government official does an act within his technical authority does not automatically exempt him from an obstruction prosecution. A judge has the legal power to dismiss a case for insufficient evidence, but if the judge takes that step because he has been bribed or because he knows the defendant, if convicted, may implicate the judge in wrongdoing, then an exercise of legal power becomes corrupt and a crime.

If it could be proven that Mr. Trump urged, or ordered, Director Comey to discontinue the Flynn investigation and then fired the Director for non-compliance, and did so “corruptly,” then the President would be in violation of one or more of the obstruction statutes.

Did Mr. Trump act “corruptly”?

This is the heart of the matter. And, given the currently available facts, proving corrupt intent would be extraordinarily tough.

First, as Andrew McCarthy of National Review contends, Trump’s conversation with Comey about General Flynn can be characterized as nothing more than an expression of the opinion that, in light of Flynn’s long record of public service, prosecuting him would be “overkill.” If that’s all it was, prosecutors routinely decline cases on similar grounds.   And, if that’s all it was, as McCarthy observes, “A president does not corruptly impede an investigation by deciding that the equities weigh in favor of halting it. That is a decision the president gets to make.”

The problem for McCarthy’s argument is that it focuses too narrowly on the one Trump-Comey talk about Flynn and ignores substantial evidence — from Mr. Trump’s own mouth – that the Comey talk and subsequent firing had less to do with the equities of General Flynn’s individual case than with Mr. Trump’s concerns about the broader investigation into his campaign’s connections to Russian meddling in the election. Mr. Trump told Lester Holt of NBC News that he was thinking about the “Russia thing” when he fired Comey. And the day after Comey’s firing, he supposedly told Russian officials that firing Comey relieved “pressure” over Russia.

In light of these statements, the claim that Trump’s efforts to get the Flynn case dropped were merely expressions of personal compassion unconnected to the panoply of other investigations with personal ramifications for Trump and his administration are deeply unconvincing.

Nonetheless, even if it could be shown that Trump’s motive throughout his interactions with Comey was to influence or quash the Russian investigation, that might not be enough. As Randall Eliason has pointed out, obstruction only occurs if a defendant’s acts have the “natural and probable effect” of influencing a proceeding, and even firing an FBI director would not necessarily stop the broader Russia investigation.

More to the point, a presidential decision to delay or entirely quash a criminal investigation – even one that threatens damage to his own administration – is not necessarily “corrupt.” Let us for a moment take Mr. Trump at his word. He asserts that the aspect of the Russia investigation concerning collusion between his campaign and Russian operatives is baseless, a dry well, or in his preferred phrase, “fake news.” Assume (however much you may want to believe otherwise) that he is right – and in the end he may be proven so. Assume at the least that he believes this to be true.

If that is the case, then his actions to date can be seen as no more than efforts to stop a factually baseless investigation that is undermining his administration and its program both domestically and abroad, and thus, in his eyes, adversely affecting the interests of the United States. And this is where Professor Dershowitz’s absolutism gets at least a tiny tip of the hat. Regardless of how clumsy, unseemly, and downright suspicious Mr. Trump’s behavior looks, this is the kind of judgment a president is empowered to make.

Professors Daniel Hemel and Eric Posner contend, in effect, that a president’s conduct should be judged by the same standards that would govern an ordinary prosecutor, pointing to internal Justice Department regulations prohibiting participation in investigations of persons with whom the prosecutor has a “personal or political relationship.” Leaving to one side the fact that the cited regulations expressly disclaim creating any enforceable legal right, they are transparently inappropriate as a template for criminal liability of a president. A president can fairly be said to have a “political relationship” with, at the very least, every appointed official in the executive branch, every member of congress, and most high-ranking state officials, not to speak of the legions of non-governmental political actors who populate electoral campaigns. Literal application of the Hemel-Posner standard would debar a president from having any input on the investigation or prosecution of virtually the entire American governmental and political class. While some might think that desirable, it is surely not the law.

Nonetheless, Hemel and Posner are right, and Dershowitz and Gingrich are wrong, that this president could be guilty of obstruction of justice.

If the investigation reveals Trump campaign-Russia collusion, or financial shenanigans by the Trump campaign or his family, or other as-yet unsuspected wrongdoing by Trump or those close to him, then Trump’s good-faith defense to obstruction would be crippled. He might nonetheless claim ignorance of whatever malfeasance emerged, but that would likely be a tough sell. Even for a president, trying to stop an investigation you know or fear could lead to charges against you, your family, or senior members of your administration is to act “corruptly.”  Because in such a case, your motive is self-protection, rather than promotion of the public good.

For a would-be prosecutor, however, this is not much consolation. Because where we end up is that, under these peculiar circumstances, obstruction cannot be proven so long as Trump can plausibly maintain that he believed the Flynn/Russia investigation was baseless and therefore harmful to American interests. Proving obstruction would require proof that there was underlying misconduct that Trump knew or feared would be revealed by the Russia investigation.

           In short, obstruction of justice is not the silver bullet despairing liberals pine for. In this case, the old bromide, “it’s not the crime, it’s the cover-up,” does not apply. Before Mr. Trump could plausibly be charged with obstruction of justice, the investigation he is alleged to be thwarting would have to find evidence of a crime he was seeking to conceal.

Even this, to some, unsatisfactory conclusion leaves unanswered four other critical questions: (1) Can a president be indicted for crime during his term in office? (2) Will this or any Justice Department bring such an indictment? (3) Even if a Justice Department can and would proceed with an indictment of a sitting president, can a sitting president who has been indicted simply pardon himself? (4) Most importantly, even if a sitting president is effectively immune from criminal indictment, can conduct that would be indictable were the defendant not president be the basis of impeachment proceedings?

I will address these issues in subsequent posts.