Nathaniel Hawthorne, call your office. Hester Prynne, your fictional protagonist, had a scarlet letter “A” imprinted on her dress, to wear in public and thus advertise to the end of her life her adulterous relationship. Hester was ostracized, a punishment visited on Donald Trump by various public- and private-life segments of the Never Trump coalition: academics, Hollywood and above all, left-wing mainstream press. Hester, doing penance to the end of her life, stuck to her knitting; Trump, for the remainder of his first term, and perhaps, for a full second term, plans to stick to his — being president.
Not if the Democrats have anything to say about it. And they do. With the “Russia collusion” narrative so effectively torched by the first volume of the Mueller Report — even Adam Schiff is tossing it (however belatedly) — the focus shifts to the second volume of the report. Therein its authors examine what constitutes in law an “obstruction of justice.” It was this area that doomed the presidency of Richard Nixon, 45 years ago. Nixon resigned when told by GOP congressional leaders that he had three votes in the House, and upon impeachment there he would be convicted in a Senate trial. Special counsel Leon Jaworski named “RN” as an “unindicted co-conspirator” in the “Watergate” scandal cover-up.
House Democrats have the majority and thus can impeach the president without support from across the aisle. It is unlikely the Senate will convict — just as was the case in 1998, when Republicans impeached president Clinton. But the House can do so anyway, and thus indelibly besmirch President Trump’s historical reputation. They need not have legal cause, as impeachment is a political remedy. Whereas a criminal charge must be proven in a court of law “beyond a reasonable doubt,” the House can vote articles of impeachment on broader, non-legal terms. The oft-quoted April 15, 1970 formulation of then-GOP House minority leader Gerald Ford, leading an abortive effort to impeach Justice William O. Douglas, suggests its scope:
[A]n impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office. (Emphasis mine.)
To be fair, read in context (h/t, Matthew Franck’s 2006 NRO article), Ford pre-emptively narrowed his definition earlier in his speech:
Let me say by way of preface that I am a lawyer, admitted to the bar of the United States Supreme Court. I have the most profound respect for the United States Supreme Court. I would never advocate action against a Member of that court because of his political philosophy or the legal opinions which he contributes to the decisions of the court. Justice Douglas has been criticized for his liberal opinions and because he granted stays of execution to the convicted spies, the Rosenbergs, who stole the atomic bomb for the Soviet Union. Probably I would disagree, were I on the bench, with most of Justice Douglas’ views, such as his defense of the filthy film, “I Am Curious Yellow” [sic]. But a judge’s right to his legal views, assuming they are not improperly influenced or corrupted, is fundamental to our system of justice.
I should say also that I have no personal feeling toward. Justice Douglas. His private life, to the degree that it does not bring the Supreme Court into disrepute, is his own business. One does not need to be an ardent admirer of any judge or Justice, or an advocate of his life-style [sic], to acknowledge his right to be elevated to or remain on the bench.
Specifically, Ford was addressing two issues: First, he discusses evolving standards on financial (outside earnings) conflict of interest and judges, which grew out of the 1968 withdrawal by LBJ of the nomination of then-associate justice Abe Fortas for chief justice; under fire over conflict of interest, Fortas withdrew, and Richard Nixon nominated Warren Burger in 1969, to succeed Earl Warren. Second, he cites Douglas’s published views on when violent revolution is legitimate as protected First Amendment speech for a private citizen, but out of bounds for a sitting justice to endorse.
Ford’s signal point was that per Article III judges are appointed for life “during good behavior” — hence, the standard for judicial appointment differs from the standard for remaining a judge.
Perhaps even more significant is what Ford said about the standards for judges versus that of executive branch officers — including the president of the United States:
I think it is fair to come to one conclusion, however, from our history of impeachments: a higher standard is expected of Federal judges than of any other civil [o]fficers of the United States. The President and Vice President, and all persons holding office at the pleasure of the President, can be thrown out of office by the voter at least every four years. To remove them in midterm (it has been tried only twice and never done) would indeed require crises of the magnitude of treason and bribery. Other elective officials, such as Members of the Congress, are so vulnerable to public displeasure that their removal by the complicated impeachment route has not even been tried since 1798. But nine Federal judges, including one Associate Justice of the Supreme Court, have been impeached by this House and tried by the Senate; four were acquitted; four convicted and removed from office; and one resigned during trial and the impeachment was dismissed. (Emphasis mine.)
The Mueller report cited ten specific categories of presidential conduct that could amount to obstruction of justice, but punted the decision to Attorney-General William Barr, the designated recipient of the report. Andy McCarthy explains with clarity and precision what much news/pundit commentary muddled:
Mueller was saying that the incidents involved actions that could theoretically have amounted to obstruction.… (Emphasis mine.)
A concrete example [is] the firing of FBI director James Comey. Before a prosecutor considered evidence regarding that incident, there would be a preliminary question: Could the president’s dismissal of an FBI director amount to an obstruction offense as a matter of law? If prosecutors were to decide that, even if the evidence showed corrupt intent on the part of the president, a president’s firing of the FBI director cannot constitutionally amount to an obstruction crime, then the prosecutors would not bother to investigate and make an assessment of the evidence. (Emphasis in original.)
What Barr is saying is that he and Mueller did not agree, with respect to all ten incidents, on whether the incident could legally amount to obstruction. What the attorney general therefore did was assume, for argument’s sake, that Mueller was correct on the law (i.e., that the incident could theoretically amount to obstruction), and then move on to the second phase of the analysis: Assuming this could be an obstruction offense as a matter of law, could we prove obstruction as a matter of fact? This requires an assessment of whether the evidence of each element of an obstruction offense — most significantly, corrupt intent — could be proved beyond a reasonable doubt.
McCarthy goes on to cite the administration’s transparency in cooperating with the investigation. Collectively that cooperation “… so cut against the idea of corruptly impeding an investigation that it is inconceivable the prosecutor could prove an obstruction case beyond a reasonable doubt.”
Complicating matters is that obstruction of justice is almost always a gray area, with no clear-cut line. Thus, McCarthy concludes: “It is common sense that… the president did not handle each of the ten incidents in a way we find admirable, and at the same time agree that the president’s conduct was not felonious.”
With this in mind, Mueller named five principles that underlie obstruction charges: (1) an obstructive act; (2) nexus to a pending or contemplated legal proceeding; (3) acting corruptly; (4) witness tampering; (5) attempts and endeavors.
These principles are mapped to ten categories of the president’s allegedly obstructive conduct: (1) comments on the unfolding Russia collusion investigation; (2) firing FBI director James Comey; (3) opposing appointment of a special counsel, and efforts to remove him; (4) efforts to curtail his investigation; (5) efforts to prevent public disclosure of evidence; (6) efforts to have then-A-G Jefferson Sessions take control of the investigation by rescinding his recusal from Russia matters; (7) asking his White House counsel to deny that Trump asked him to have the special counsel removed; (8) protesting conduct of investigators towards Paul Manafort and Michael Flynn; (9) importuning ex-personal attorney Michael Cohen to resist investigators and support Trump’s contentions; and (10) “overarching” factual issues pertinent to conduct of a sitting president.
We may simplify matters by dividing these actions into: (a) public comments; (b) private communications with administration officials, advisors and, rarely, directly with investigators; (c) attempts to allegedly deceive investigators; and (d) factors peculiar to the presidency.
Public comments by the president were almost always calling the investigation a “witch hunt” by partisan prosecutors or “fake news’ partisan pundits; these comments are protected under the First Amendment. Private communications with officials and advisors frequently cover actions the president is clearly constitutionally empowered to do or order others to do — such as, firing executive branch political appointees. As to attempts to deceive investigators, two items stand out: Trump’s efforts to get ex-personal attorney Michael Cohen to cover up his payoffs to Stormy Daniels; and urging his White House counsel to deny that Trump asked him to fire Mueller. In each case Trump was covering up legal activity: he has a right to conceal lawful conduct — paying off a blackmailer is legal, and not a campaign law violation. And urging his counsel to take lawful actions (such as firing executive branch political appointees) is protected by the attorney-client privilege.
As to Trump’s telling his counsel to falsely deny that Trump asked him to fire the special counsel, four factors militate against charging obstruction. First, as indicated below, where no crime is charged, “process” offenses like obstruction of justice should not be charged either. Second, a spontaneous outburst — a commonplace with the volatile Trump — to his own advisors, directing them to mislead investigators, should not be considered obstructing justice. Unlike the “exculpatory ‘no’” doctrine — falsely denying guilt in a statement made to a federal official, which has been rejected by the Supreme Court — Trump spoke to his own counsel. Thus the federal false statement statute (covers unsworn statements) does not apply. Third, suppose Trump’s counsel had ordered the attorney-general to fire Mueller. No A-G would take such a politically explosive step without being assured of the president’s approval. Thus, a president cannot mislead anyone here. Finally, because the White House counsel or the A-G would be universally known to have acted for the president, Trump’s order is a matter utterly tangential and trivial.
Andy McCarthy compares Trump’s behavior with that of the Obama administration’s claiming executive privilege re secretary of state Hillary Clinton’s consultations with lawyers during the email inquiry:
Moreover, the most unsavory evidence of presidential misconduct came from the president’s own White House counsel — meaning it could have been withheld not just from Congress and the public but also from Mueller on executive-privilege and attorney-client-privilege grounds. Remember the Clinton emails investigation — recall how Mrs. Clinton inserted lawyers in her every activity, and then the Obama Justice Department dutifully tied the FBI’s hands on the rationale that basic investigative steps would have risked transgressing attorney-client privilege? By contrast, the Trump White House and Barr did not assert privilege claims; as a result, testimony damaging to the president was freely given to the prosecutor and congressional Democrats.
As for the presidency, Mueller & Co. cite the power of the presidency to influence the executive branch and official proceedings; and the fact that many of the president’s comments and acts took place in full public view. And they separate the “process crime” of obstruction from underlying substantive crimes. This last point is necessary because the special counsel concedes that the president committed no underlying crime. In this view, presidents are vastly powerful, with a unique ability to influence events.
Simply put, this is arrant nonsense. In reality, the exact opposite is true. As Trump himself said upon learning of Mueller’s appointment, his presidency would be “over.” The president was completely unsuccessful in trying to influence subordinates to do his bidding; he dared not fire Mueller, despite ardently wishing to shut down what he (rightly) called a “witch hunt”; and his complaints about “fake new” media, though successful in animating his base, equally animated the Democratic Party base. In sum, contrary to Mueller’s view of an all-powerful president, the president and his administration were paralyzed, unable to control events. Special counsels are uniquely capable of nullifying presidential power and influence by tying an administration and myriad senior executive branch officials up in knots.
This reality echoes the experience of prior administrations. Start with the aforementioned Richard Nixon. He ordered his attorney-general, Elliot Richardson, to fire special counsel Archibald Cox; Richard resigned instead. Nixon then ordered deputy A-G William Ruckelshaus to fire Cox; he also refused, and resigned. Finally, solicitor-general Robert Bork carried out the president’s order. Then, Cox was replaced by Leon Jaworski. The “Saturday Night Massacre” generated a political firestorm, and got the House of Representatives to refer impeachment to the Judiciary Committee. Less than 10 months later, Nixon departed the White House to go into exile in California. Score: Cox/Jaworski 100, Nixon 0.
The “independent counsel” of the 1980s and 1990s wreaked such havoc in the Reagan, Bush 41, and Clinton administrations that in 1999 Congress repealed the statute creating the IC. Iran/contra paralyzed much of the Reagan administration for nearly half his second term; the Bush years saw five former key Iran/contra figures convicted or pleading guilty, with former secretary of defense Caspar Weinberger about to undergo a jury trial when Bush 41 pardoned them over Christmas 1992. Hillary Clinton earned the dubious honor of being the first First Lady to be summoned to appear before a grand jury.
In the Bush 43 years his foreign policy was bedeviled by a fabricated scandal, the outing by bureaucratic leak of a mid-level CIA operative. Despite the fact that she was not a secret agent within the meaning of applicable law, not only did the special prosecutor, Patrick Fitzgerald, win a conviction of a top aide to vice president Dick Cheney. He did so on a process crime, via a “perjury trap” of the kind that Trump avoided because on advice of his attorneys he did not allow Mueller to interview him. The trap, almost impossible to escape, is sprung when prosecutors get one or more witnesses to contradict the target’s recollection of distant past events. They toss it to the jury. A D.C. jury, selected from a pool of the most ferociously left-wing voters in America, convicted I. Lewis “Scooter” Libby, a man of impeccable integrity. Worse, Fitzgerald knew who the real culprit was, either from the outset or shortly after starting his investigation: deputy secretary of defense Richard Armitage. His investigation literally manufactured a crime. Libby had his sentence commuted by Bush 43, and finally, was pardoned by President Trump. But he lost ten years of law practice in the interim.
President Obama was luckier, courtesy of studied indifference to his misdeeds, on the part of the usual suspects in mainstream media, and, above all, two corrupt, hyper-partisan attorneys general. He survived a series of scandals: the IRS targeting conservative groups with phony charges to prevent them from effectively participating in the 2012 campaign; the “fast and furious” sale of 2,000 automatic weapons to — get this — drug cartels, in a quixotic effort to identify bad guys; and Hillary Clinton’s serial breaches of confidentiality laws governing classified information. She stored them on her home server, which, according to FBI director Comey, had less security than a commercial Gmail account, and thus was easily penetrated by several hostile foreign intelligence agencies.
Comparing the Clinton and Obama presidencies, Democrats learned their lesson: never appoint a special counsel to investigate a Democratic administration. (But with Trump A-G Barr likely to impanel a grand jury to investigate Team Obama and Deep State allies spying on the Trump campaign, the Obama luck may soon run out.)
The Mueller report concludes its obstruction inquiry by de facto shifting the burden of proof to the defense:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state.… [W]e are unable to reach that judgment.… [W]hile this report does not conclude that the president committed a crime, it also does not exonerate him. (Emphasis mine.)
Perhaps the worst feature, after proof shifting, of the Mueller team’s position is that lawful conduct can be dragged into the purview of the law by finding that the target acted with corrupt intent. Criminal laws generally specify that “intent” means intent to commit the act, without inquiry into motive. Motive can help a prosecutor win a conviction. But if X points a gun at Y, takes careful aim, and shoots Y, without legal privilege (law enforcement, self-defense) to do so, those facts suffice to enable a jury to convict X of murder. The law provides that if one acts intentionally, one intends the act’s reasonably foreseeable consequences.
The law is presumably to be applied without regard to politics. But any special counsel investigation of any administration involves the highest of political stakes: possible destruction of a presidency or an administration. Add in that Mueller stacked his lead prosecutorial team with Democrats each of whom donated thousands of dollars to the Clinton campaign and/or the Democratic Party. Whatever happened to that stock scandal phrase of the 1980s — used mostly at the expense of Republicans by a leftist mass media: “insensitivity to the appearance of impropriety”? During the Trump years it has been flushed down George Orwell’s Memory Hole.
Bottom Line. To expect that hardcore Democratic partisan prosecutors will divine a Republican president’s motive without regard to their politics — especially at a time of what is arguably the worst partisan political divide since the Civil War — is to dwell in what Lady Thatcher called “Cloud Coo-Coo Land.” Mueller and his comrades in prosecutorial arms have sewn on to Mr. Trump’s vestments the scarlet letters “O.J.” to signify obstruction of justice. Had they restricted themselves to unlawful conduct based upon acts rather than presumed corrupt motive for otherwise lawful acts, they would instead have applied the famous Johnnie Cochran line to the 1995 O.J. jury: “If it doesn’t fit, you must acquit.”
John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014.)