Problems Proving Obstruction and Conspiracy

April 2, 2019

Two statutes add to the many issues that complicate the status of Robert Mueller’s investigation of Russian interference in the 2016 presidential election.

One defines obstruction of justice as “imped[ing] the due administration of justice.”[1] It has been treated as necessary that one have specifically intended to obstruct a proceeding. One can prove that someone like Trump intended to impede justice either by statements of intent or actions that make it obvious. Obstruction is about such things as Trump’s dismissal of Comey and urging an end to the investigation. It would have been cleaner if Trump had recused himself from the investigation. But he didn’t dismiss Rosenstein or Mueller or order either Comey or Sessions to end the investigation, only encourage them to. Was that enough? It probably would be if you told a police officer to get lost. But, even though Congress is not limited by the same rules of evidence, Supreme Court decisions about evidence of intent will complicate things. Let me come back to that in a moment.

A second statute makes “[A]ny conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . .” a violation of federal law.[2] Participants must agree, intend, and do something to further the conspiracy. Once again, intent might be proven by explicit statements, or by actions that make it obvious.

The Supreme Court, however, is not a friend of the obvious. It ratcheted back the law of conspiracy in an antitrust case saying that it is not enough to show that two people or companies acted as if they were acting in concert. The Court wants something closer to an explicit statement or admission.[3]

The Court doesn’t like to infer intent from behavior, except for infering intent to favor African-American efforts to equalize their opportunities with those of whites. The Court decided that many electoral district lines were unconstitutional racial gerrymanders in favor of African-Americans based on the shapes of the lines, even where the more obvious purpose was political gerrymandering which, to this day, they refuse to condemn.[4] But the Court resists finding that white officials disadvantaging minorities did so intentionally.[5] In one case they would not even get to the evidence, writing that such discrimination by high public officials was “implausible.”[6]

Intelligent attorneys would stop short of explicit statements or admissions. Politicians and criminal conspirators often make agreements based on unstated understandings. Trump came much closer to the brink than an intelligent lawyer would have. But notice the absence of any explicit quid pro quo. There’s no “release the recordings, Mr. Putin, and we’ll deliver the EU.” There’s no “let us help you violate our laws to get information on the Democratic National Committee or candidate Clinton.” It wasn’t even in the form of requests that they do some illegal things in the U.S. Instead the evidence we know about was all encouragement – saying that would be great, we hope Putin does it, or we predict he will. Trump’s statements are not explicit. Lawyers recognize that circumstantial evidence is often the most reliable but this Court thinks big shots and major corporations should be protected from it. Here, the evidence we know about is ambiguous – does it indicate a joint endeavor or simply knowledge of Putin’s actions?

The strength of the evidence will depend in part on whether Congress is willing to ignore the Court. In other words, the U.S. Supreme Court had its favorites and its scapegoats even before Trump’s appointments made it worse. None of that makes Trump blameless but it does mean that there will be battles over the evidence if there is any attempt to impeach.

— This commentary was broadcast on WAMC Northeast Report, April 2, 2019.

[1] 18 U.S.C. § 1503, 1505 and https://www.law.cornell.edu/wex/obstruction_of_justice.

[2] Hass v. Henkel, 216 U.S. 462, 479-480 (1910).

[3] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

[4] See, e.g., Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996).

[5] See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); and see also League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 517 (2006) (Scalia, J., concurring in the judgment in part and dissenting in part).

[6] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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Are We Overplaying Our Hand?

May 29, 2018

I’ve tried to state these comments not in all or nothing terms but in more realistic degrees. My question is what happens to the extent that a country overplays its hand?

That the U.S. pulled out from the nuclear agreement with Iran, China, France, Russia, the United Kingdom, Germany and the United Nations Security Council means, first, that the U.S. will surrender some commerce and trade to Iran’s other trading partners and that some of the others will move to fill some of the gap. If the U.S. tries to assert secondary sanctions against companies based abroad that trade with Iran, that will certainly offend others of our trading partners, including the E.U. and its members. They are likely to conclude that they cannot allow the U.S. to determine their trading practices and rules. If so, they can look elsewhere. Some companies can decide that trade with the U.S. is unpredictable and decide to scale it back. In other words, one consequence of the pull out can be that the U.S. becomes a smaller, less attractive country to trade with and a less powerful international voice. We may want to isolate Iran but we might increase our own isolation instead.

I objected to the arbitration provisions of the Trans-Pacific Partnership because it gave too much power to corporations to free themselves from labor and environmental regulation – grounds of little interest to the Trump Administration. But when the U.S. pulled out of the Trans-Pacific Partnership, China stepped up to fill the vacuum. That’s a real cost that could have benefitted from continuing diplomacy rather than precipitate withdrawal. Insisting on having our own way can leave us celebrating our purity of principle but also isolated and irrelevant. And to the extent other countries can’t trust American politics and reach agreements with the U.S., America’s power and influence shrink.

Democracy generally depends on compromise. When people refuse to compromise, they lose the ability to reach a policy that the country can pursue successfully. We pursued a policy of containing communist countries for more than 50 years and it succeeded because the two parties preferred to work together than make a political issue out of that strategy. Republicans like to credit Reagan, but it was initiated under Truman, in line with the recommendations of George Kennan, and followed by Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan and Bush – presidents from both parties. These men were too wise and honorable to follow or reject policies because someone else started it. The ability to reach a consensus across party lines meant that it was stronger than party and America was strengthened as a result.

Some people who portray themselves as patriots want the U.S. to act independently of what other countries and international organizations want. But it’s questionable whether that’s actually patriotic because ignoring real world constraints runs us up against walls of resistance and sacrifices too much. The U.S. has about 1/23 of the world’s population. Running the other 22/23rds by sanctions, threats and intimidation is a heavy lift, likely to backfire. Wisdom comes harder. But it is important.

  • This commentary was broadcast on WAMC Northeast Report, May 22, 2018.

The Central Issue of Trump

March 20, 2018

Trump says and does so many things which are parts of much bigger issues, that it’s nearly impossible to keep up.

  • He has us discussing whether he’s going to fire one guy or the other, who does or doesn’t deserve to go;
  • Whether Trump will make war or peace and what country deserves our friendship or enmity;
  • Whether we will honor or dishonor treaties that he claims other countries violate, though no one else shares that view;
  • Whether he has a policy about infrastructure based on his saying things should be built or does not have a policy based on the empty line in his budget;
  • Whether he has conspired with an enemy of the United States, and whether the Special Counsel’s investigation should be shut down because he tells us that he did nothing that should be investigated, and whether it matters that he didn’t give Hillary that privilege.

It makes the head spin.

We’re heading in just a few years to an economy in which most of us won’t have steady jobs, pensions or unions to support us. Instead it’s everyone for himself all the time in the gig economy. Republicans insist that government and regulation are almost always bad. Who’s left to have our interests at heart? Reminds me of pastor Martin Niemöller on being sent to the concentration camps by the Nazis, “Then they came for me—and there was no one left to speak for me.” Is Trump for or against the workers when he says nothing about union rights and supports no change in working conditions other than tariffs for a couple of industries. And is Trump for or against a livable environment when he takes every possible action to degrade the earth, air and water?

We have been at war since 2003 but what do we have to show for it but body bags and amputees. Will Trump send more troops to die in the Middle East, or is he just bluffing to make people back down? But attempted bluffing will be ignored by people across the globe who have all lost confidence in what he tells us because we need only wait a short while for him to say the opposite.

Trump wants the Special Prosecutor, Robert Mueller, to stop investigating whether Trump or his campaign collaborated with the Russians in order to win the White House, or wants to fire Mueller and hire someone else who will close the investigation? Does it matter whether criminal defense lawyers may want their accused clients to have a right to choose their prosecutors and put a time limit on investigations, especially for such difficult prosecutions as those of organized crime, corporate finagling and international financial transactions. Can they cite the president for that right?

It’s enough to make one’s head spin. But there’s a way to simplify it. Forget all the separate issues until we have a president that actually cares about them, and focus on impeachment. Every one of those issues bears on impeachment, either because they relate to obstruction of justice, selling America out, self-dealing in foreign affairs or rewarding his favorite autocrats and wealthy friends at the expense of the people he swore to protect. His high crimes and misdemeanors easily exceed what Clinton was impeached over, threaten more damage to the republic than the misbehavior for which Andrew Johnson was impeached, and for which Richard Nixon resigned before the House could vote on articles of impeachment. Bring all these issues back to the fundamental question of impeachment. Dirty Donald, lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 20, 2018.


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