I have been having an ongoing debate with Professor Sam Buell, Professor Alan Dershowitz, and others about whether, based on currently available information, Mr. Trump may have violated federal obstruction of justice statutes in connection with the Russia collusion investigation and the firing of FBI Director James Comey. The technical point in contention has been the circumstances under which a president who delays or halts a federal investigation can be said to have acted with the required mental state of “corruptly.”
I have maintained that, given the president’s unique position at the apex of the executive branch, corrupt intent could only be proven if it were shown that, in acting to slow or stop an investigation, the president was not acting in good faith to promote the public interest, but was instead protecting his private interests. Such proof could include evidence that he knew or suspected that the investigation might implicate himself, his family, or close aides in wrongdoing. I expressed skepticism that the then-publicly-available facts were sufficient to establish that state of mind for Mr. Trump.
The recent revelations about the June 16, 2016, meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort, and a Russian lawyer they were told was representing the Russian government and was offering dirt on Hillary Clinton may change the calculus. As I discussed in my last post, that meeting might indeed prove to be technically criminal. It surely came close enough to a variety of legal red lines that, assuming Trump either knew of it in advance or came to know of it before he began to meddle with Mr. Comey and the Russian investigation, he would certainly have been worried that the Russian investigation would reveal the meeting and produce legal exposure for his family, his campaign staff, and possibly himself. That sort of thing would bridge the gap that has, so far, separated my view of the state of the evidence on obstruction from that of Professor Buell.