By Frank Bowman
In this morning’s New York Times, eminent Harvard Law Professor Larry Tribe, joined by Norman Eisen, former ambassador and White House ethics adviser, and Caroline Fredrickson, president of the American Constitution Society, published an op-ed arguing that Congressman Devin Nunes may have committed the crime of obstruction of justice by coordinating with the White House to release the infamous MEMO that attacked the credibility of the infamous DOSSIER compiled by former British spy Christopher Steele.
I yield to no one in my contempt for Congressman Nunes’s ridiculous memo, which I characterized as “a tragicomic face-plant. Likewise, I am heartsick at the coordinated efforts by Republican congressmen to undercut the Russia investigation and undermine the Justice Department. Nonetheless, while the behavior of Nunes and his unsavory congressional cohorts is tragic and deeply un-American, it’s not the crime of obstruction of justice. And labeling it as such is a sad mistake.
As I have discussed at length elsewhere, obstruction can be prosecuted under a number of statutes, the most likely being 18 United States Code, Section 1503 and 18 United States Code, Section 1512. A violation of Section 1503 occurs if a defendant “corruptly … endeavors to influence, intimidate, or impede any … officer in or of any court of the United States, or … corruptly… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The last phrase is the so-called “omnibus clause” and has been construed quite broadly by federal courts. A violation of 18 United States Code, Section 1512(c) occurs if a defendant: “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so….”
The Tribe/Eisen/Fredrickson theory of obstruction runs thus: (1) “[T]he Nunes memo may be designed at least in part to provide the president an excuse for firing Deputy Attorney General Rod Rosenstein, the individual with supervisory authority over Mr. Mueller, the special counsel in charge of the [Trump-Russia] investigation.” (2) The objective of this “scheme” is to “clear a path to install a Trump-friendly replacement who would either fire Mr. Mueller or otherwise defang the investigation.” (3) Therefore, Nunes has obstructed justice.
Note that, even as stated, the object of the purported “scheme” is completely speculative. Tribe and company write that the memo “may be designed at least in part” to provide Trump an excuse to fire Rosenstein and then Mueller. Maybe. But it’s equally plausible that the memo is designed, not to enable Mueller’s removal, but to pre-emptively discredit his findings in the mind of the public, thus providing a political benefit both to Trump and to the political party whose fortunes are increasingly tied to his. The latter objective is slimy in the last degree, but it’s not criminal.
Moreover, even if Nunes is “scheming” with the White House to clear the way for Mueller’s removal, that is not obstruction of justice unless Nunes has a “corrupt” purpose. Tribe and company acknowledge this point, but glide right past it, making no effort to explain what Nunes’ corrupt purpose was or with what evidence it might be proven. For them, it seems to be enough that Nunes’ has acted “at least in part” with the aim of getting Mueller fired.
As much as Trump opponents may want to think otherwise, opposition to Mueller and his investigation is not, in itself, immoral or illegal. It is perfectly possible to conclude that no such investigation should be occurring, or that, if it must occur, someone else ought to be running it. I disagree on both points, and I think that people who entertain these views are either cynical partisans or gravely, if honestly, mistaken. But I don’t imagine that disapproving of Bob Mueller’s work is “corrupt.”
To prove that Nunes acted “corruptly” one would have to show that he believed that a “natural and probable effect” of his memo would be the firing of Robert Mueller, and that he believed firing Mueller would stop or impede the investigation Mueller heads, and that he believed Mueller’s investigation is not a “witch hunt,” but a legitimate inquiry into matters deserving of federal law enforcement attention. Some might argue that, as a matter of law, it doesn’t matter what Nunes believes about the legitimacy of the Mueller inquiry. Technically that might be so. But pragmatically, it makes all the difference in the world.
Imagine that a rogue U.S. Attorney began investigating the ACLU and the NAACP based on specious claims that they were treasonous communist front organizations in league with North Korea. One would hardly think of charging a congressman with obstruction of justice if the committee he chaired were to provide the White House and the public with information undercutting the credibility of the overzealous U.S. Attorney in hopes of getting him fired.
Finally, as Tribe and company concede, congressmen are protected by the speech or debate clause of Article I, Section 6, from prosecution for activity integral to legislative or oversight responsibilities. The authors strive mightily to distinguish Nunes’ activities from those covered by the constitution, but their efforts are ultimately strained and unconvincing. After all, the memo was issued, not by the White House or by Devin Nunes in his personal capacity, but by the Republican members of a congressional committee chaired by Congressman Nunes.
But the big point here is that, regardless of the technicalities, no sane federal prosecutor would seriously consider indicting a United States congressman on these facts. It just would not happen. And one has to assume that, as intelligent and sophisticated lawyers, Professor Tribe, Mr. Eisen, and Ms. Fredrickson know that.
That being so, it is hard to see what is accomplished by publishing such stuff. Sure, it feeds the hopeful fantasies of the many Americans who understandably despise Mr. Trump and his enablers. But it’s not real. It’s sloppy result-driven legal analysis untethered to any appreciation of real-world behavior in the criminal justice system. It lends undeserved credence to Alan Dershowitz’s constant refrain that Trump opponents want to criminalize ordinary politics. It feeds into the broader right-wing narrative that liberal lawyers are mere anti-Trump propagandists incapable of dispassionate analysis.
And so, to Professor Tribe and friends I would say this: Lord knows I sympathize with your distaste for Mr. Trump. And I, too, would like nothing more than to see the man out of the office he daily disgraces. But please stop trying to shoehorn every deplorable act of this concededly deplorable crew into a criminal statute. It diminishes not only your credibility, but that of other legal critics of Mr. Trump and his minions.
More importantly, the problem with Nunes’s clumsy machinations is not that they constitute a technical violation of a federal criminal statute, but that they amount to an open and notorious assault on the integrity of the entire legal and national security apparatus of the United States. That’s a “political” problem, in the broad sense of the term employed by Alexander Hamilton when he spoke in Federalist 65 about the political character of impeachable offenses. It is a cardinal error to jam Trumpist assaults on the norms of republican government into ill-fitting technical legal categories. To do so both diminishes the seriousness of the mortal challenge Trumpism presents to American democracy and affords Trumpists a cheap defense — if their outrageous behavior proves not technically criminal, they can proclaim it entirely acceptable.
In the end, the criminal justice system may play a supporting role in solving the Trump problem, but that problem will only finally be solved by political means — convincing a sufficiently abundant majority of the American people to repudiate Mr. Trump and his allies at the ballot box. Only in that way will Mr. Trump be denied a second term, and only in that way will a congress be elected in 2018 that takes impeachment seriously.