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Several days ago, I commented on Professor Sam Buell’s excellent article in Slate on whether, on the publicly available evidence, Mr. Trump can be said to have committed the crime of obstruction of justice.  I suggested that Professor Buell was underappreciating the difficulties of proving the required mental state of “corruptly” when the defendant is the President of the United States.  Professor Buell was kind enough to respond briefly to my argument, saying:

Frank, I think we are in agreement about where the one issue of substance lies, as I concede in my Slate piece. That’s a good sign. (They cut my piece by 1500 words by the way, and I didn’t use the term “slam dunk,” they did in the headline.) But perhaps neither of us is quite on the mark still. First, it just isn’t legally relevant to obstruction liability whether the underlying crime is there or whether the violator knows that. Second, your quite deft argument still suffers from the proves too much problem of the Dershowitz argument, with regard to what it suggests a president could legally do. Anything could be rationalized as in the national interest and rationalization isn’t a way of making mens rea go away. Otherwise a CEO could get away with accounting fraud on the argument that it’s better for the shareholders in the long run if the truth is suppressed. Third, I think we just disagree about whether there are enough clear facts to reach a conclusion about mens rea here. I don’t see the space for the argument you are allowing in this case, even if in another, especially given all the behavior towards Comey including clearing the room. But that’s a jury issue, which is almost always a place for reasonable minds to differ.


At the risk of beating a dead horse, I continue to think that Professor Buell’s view fails to account for the special role of a president.  He is right that, most of the time, the existence of an underlying crime or the violator’s knowledge of it won’t be relevant to proving that the violator acted corruptly in impeding an investigation into a suspected crime.  The evils against which the obstruction statutes are directed are the purposeful interruption or frustration of legal processes either (a) by unauthorized persons, i.e., persons not legally empowered to make decisions about the course of the legal process, or (b) less commonly, by persons with legal authority to affect the legal process who employ that power corruptly

Professor Buell seems to be focused almost exclusively on the first category  Indeed, his example of a CEO committing accounting fraud illustrates the point nicely.  A CEO has no legal power to authorize accounting fraud.  More importantly, he has no legal power to decide how a government investigation into possible accounting fraud will proceed. Hence, Professor Buell is entirely correct that the CEO’s judgment about whether suppressing the truth about the accounting fraud is “better for the shareholders” is irrelevant to his guilt of obstruction of justice.  But that is because the value protected by obstruction statutes is not the private value of the well being of shareholders, but the public value of the integrity of the law.   And the CEO has no authority to make judgments on behalf of the public.  Hence, if he decides to impede a government investigation of accounting fraud, he acts corruptly regardless of whether there really is a fraud, whether he’s aware of it, or whether he thinks it would be better for shareholders if no investigation happened.  His mental state is “corrupt” because he knows that he is frustrating the ordinary course of the work of the law.

But the calculus changes when the alleged violator has the undoubted power to affect the course of a legal investigation.  In that case, it is insufficient to say, “X did something that caused an investigation to stall or a prosecution not to go forward.” If a patrolman on the beat decides not to follow up a lead from an informant, or a prosecutor on intake duty decides not to file a case presented by the police, or a D.A. in Florida decides not to pursue the death penalty in her jurisdiction, or the Attorney General of the United States decides not to pursue marijuana prosecutions in states that have legalized marijuana, or the President of the United States decides that the Justice Department will not pursue criminal remedies against, say, mine safety violators or environmental polluters, in every such instance the course of a criminal case is affected or perhaps frustrated entirely.  It would seem quite bizarre to associate any of these choices with the crime of obstruction, but in truth, any of them might be obstruction if the official’s decision was driven by a “corrupt” motive.

The dividing line between the ordinary exercise of lawful official discretion and criminal obstruction is whether the official exercised his or her lawful power over the course of legal processes in good faith – which essentially means using his or her best judgment to promote the public interest –or instead acted corruptly, meaning with an “improper purpose,” 18 USC 1505.   In the case of a public official, the calculation of whether there was improper purpose unavoidably involves a judgment about whether the official allowed calculations of private interest to distort or supplant entirely his obligation to employ in the public interest his lawful power over legal processes.

Thus, when a president – from whom all federal prosecutorial authority constitutionally flows – intervenes in the course of federal investigative processes, we cannot avoid inquiring into his private motives.  Only if he acts for illegitimate reasons, which prominently include protecting himself, his family, or close aides from well-founded investigative efforts, can he be found to have acted corruptly.  So, while Professor Buell is right that presidential knowledge or fear of the existence of an underlying crime is not an “element” of the crime of obstruction, in the case of a president, proof of such knowledge or fear would surely be a necessary component of proving the statutory element of corrupt intent.

As Professors Eric Posner and Daniel Hemel put it:

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.

Which brings us to the facts.  Professor Buell is on record as thinking there are enough facts to prove corrupt intent.  I have been more cautious.  Which of us is right in the abstract is really beside the point because the facts are evolving and the question of whether Mr. Trump has obstructed justice will be resolved (if it ever is) many months from now based on far more information than is now available.

And as I will discuss in my next post, some facts have emerged in the last day or so that make the obstruction case stronger under either Professor Buell’s view or mine.