, , , ,

In yesterday’s post, I discussed the meaning of “corruptly, the required mental state for all the obstruction of justice statutes likely to be relevant to Mr. Trump’s contacts with and subsequent firing of FBI Director James Comey.  In that post, I analyzed a June 15, 2017, New York Times article by Professors Eric Posner and Daniel Hemel in which they seemed to suggest that Mr. Trump could be found to have acted corruptly if he violated standards of conduct promulgated by the Justice Department for its prosecutors.  Those standards bar a federal prosecutor from acting in any investigation or prosecution of a person or entity with which the prosecutor has a “personal or political relationship.”

I argued that this standard was plainly inappropriate for a president inasmuch as a president has personal or political relationships with all appointed executive branch officials (and many career ones), every member of congress, many high-ranking state officials, and a plethora of private political actors.  Applying this standard to a president would be tantamount to disqualifying the president from any supervisory role in any case involving the American political and governmental class.

I went on to argue that proving corrupt intent when a president intervenes in a criminal investigation requires more than proof that the subjects of the investigation are persons with whom the president has personal or political relations.  I contended that it would require proving that “there was underlying misconduct that Trump knew or feared would be revealed….”

On reflection, even this would probably not be enough.  A president could – legitimately – conclude that some kinds of misconduct by government officials or political figures, though technically prosecutable, ought not be prosecuted because doing so would be harmful to the national interest.  Assume (however improbably) that President Roosevelt had been told in May 1944 that General George C. Marshall, then Army Chief of Staff, was suspected of embezzling from the Pentagon’s petty cash.  Marshall was integral to the war effort and to coordinating the upcoming invasion of Europe.  Roosevelt would plainly have been within his rights to quash the investigation.  Vindication of the law would and should have taken second place to winning the war.  Moreover, an action of this kind would not fall into the extra-legal category occupied by Lincoln’s suspension of habeas corpus.   It would, instead, have been a presidential use of the ordinary, well-established power of prosecutorial discretion.

For an obstruction charge against a president who meddles in a criminal investigation to stick, a special kind of “corrupt” intent would be required.  Not only must it be shown that the subject of the investigation has a “personal or political relationship” with the president, but the president’s action on behalf of the subject must be shown to be motivated by concerns unrelated to the interests of justice in the particular case or to the national interest.  Deciding exactly what concerns fall into the prohibited category is extremely difficult.

Happily, it appears that Professors Posner and Hemel have given the question careful consideration in a format not as constrained as their New York Times op-ed.  In a co-authored blog post, they write:

 “We think a reasonable approach would be to say that a President commits obstruction of justice when he seeks to stop an investigation that he believes may bring to light evidence of criminal activity by himself, his family members, or his top aides, and possibly merely embarrassing information as well …. But it should be a defense if the President can show that he acted consistently with his constitutional role as the faithful executor of federal laws and as commander in chief. A President who stops an investigation because of urgent national security priorities would not be criminally liable.

This seems a pretty reasonable formulation to me.  With several caveats.  First, it seems to imply that only “national security” considerations would be sufficient to justify a presidential exercise of prosecutorial discretion in favor of  himself, family, or top aides. It is not immediately clear why pressing domestic policy considerations would not suffice.  Second, it is also not clear why the national security considerations would have to be “urgent” or how urgency would be determined.  At least in a criminal trial, a presidential defendant would (and I think should) be given a great deal of deference on the question of what is and is not a matter of national importance.

The bottom line for me remains that proving obstruction of justice for intervening in an investigation against any president  – even this one – would be a very tough go.  So tough in the case of the Comey-Russia imbroglio that I think no obstruction charge is remotely plausible without clear proof of a serious underlying crime committed by Mr. Trump himself, or by his close associates with his knowledge.