The term of the day, and one likely to be for the foreseeable future, is obstruction of justice. Indeed, in the testimony Attorney General Jeff Sessions is about to give before the Senate’s Intelligence Committee, a considerable amount of time is likely to focus on whether President Trump said something or acted in a fashion that gives rise to an obstruction charge. In all probability, little will be gleaned from Sessions’ testimony because he will likely either deny any suggestion of wrongdoing or will simply refuse to answer, asserting the president has claimed executive privilege on the particular question or issue. Given the likely difficulty in discerning what actually happened, it is thus all the more important for those in both the House and the Senate, as well as those working with the special prosecutor, to focus on facts, including admissions and inferences, pertaining to legal arguments that thus far have failed to be mentioned by any legal expert, or even remotely addressed in the public square.
Up until this moment, the arguments both for and against any obstruction charges have focused on what one might expect—the spirit of the law versus the letter of the law. Those that believe the president obstructed justice tend to focus largely on the facts asserted, and argue policy: the undue influence Trump allegedly used to stop or delay the Michael Flynn investigation as well as the related Russian interference in the 2016 presidential election probes. https://www.nytimes.com/2017/06/08/opinion/comey-trump-obstruction-of-justice.html This camp tends to give only passing analysis to existing obstruction of justice cases.
Those that support the President argue the factual assertions against him are either untrue, or at worst, some of the President’s acts may have been ill-advised but they do not rise to the level of a federal crime. These supporters correctly observe obstruction of justice charges have to follow the requirements that give rise to a crime. In turn, they look to federal statutes, such as 18 USC section 1510, section 1512, and section 1503, which basically require a “pending proceeding” to have been in place when the defendant acted in order for there to be a crime. This camp also notes that investigations by police or the FBI do not meet the “pending proceeding” requirement. See for instance, https://www.nytimes.com/2017/05/17/opinion/trumps-fbi-comey-statements-are-not-an-obstruction-of-justice.html?_r=0
Both in print, as well as on television and radio, when the technical --the no pending proceeding argument--is raised, those in favor of finding obstruction tend to attempt to change the argument to a fact-based policy discussion. They typically point out that impeachment is a political rather than legal process, and legal technicalities in a political process may not be as exacting. This sort of obfuscation, or changing of the subject-type argument tends not to be very persuasive. The reason is that while impeachment is a political process, in order to be impeached under the U.S. Constitution, a president must have committed “treason, bribery, or other high crimes or misdemeanors.” U.S. CONST. Art. I Section 2. Thus, the alleged wrongful act must have risen to the level of a punishable wrong identified in the U.S. Constitution. Neither the public, pundits, nor history will likely appreciate articles of impeachment based on nothing more than policy based upon political animus.
Nonetheless, the existing policy versus law stalemate should be broken because there is relevant legal theory as well as case law that has thus far not been examined. While defenders of the president are correct in asserting the typical obstruction charge under the federal statutes require a “pending proceeding” to be in place at the time of the accused’s actions, not all related crimes have such a requirement. Federal courts, for instance, have not insisted upon the “pending proceeding” requirement to find the related obstruction violation of conspiracy to obstruct justice. Indeed, several federal courts in more than one federal circuit have recognized, pending proceedings are not required for conspiracies to obstruct justice. In U.S. v. Vaghela, 169 F.3d 729 (11th Cir. 1999), for instance, the court observed “in order to sustain a conviction for conspiracy to obstruct justice under 18 U.S.C. § 371 and 18 U.S.C. § 1503, the government need not always show that a judicial proceeding existed at the time the defendants formed the conspiracy, but must demonstrate that the actions the conspirators agreed to take were directly intended to prevent or otherwise obstruct the processes of a specific judicial proceeding in a way that is more than merely “speculative.”” Id. at 734. Likewise, in U.S. v. Abbell, 271 3d 1286 ( 11th Cir. 2001), a federal court stated: “in Vaghela, we said the requirement that defendants’ acts have the natural and probable effect of interfering with the due administration of justice is not so narrow as to exclude efforts “to obstruct specific future judicial proceedings.”” See also, Tozala v. United States, C.A. 7 (Wis.) 2008, 545 F.3d 517 (7th Cir. 2008)( Circuit Court upheld obstruction of justice when the defendant impeded FBI investigations) ; In re Sealed Case, 162 F.3d 670, 674 (D.C.Cir.1998) (criminal obstruction found in deceptive acts during a previous civil action) Feld Entertainment, Inc. v. ASPCA, 873 F. Supp. 2d 288 (D.C. Dist. Ct. 2012) (same).
The central query in each of the cases above, as well as every obstruction of justice case including the ones that have required a “pending proceeding,” is whether the defendant knew the acts in question were attempting to impede the due administration of justice. See United States v. Aguilar, 515 U.S. 593, 599, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995). Thus, the cases requiring a “pending proceeding” have done so in order to ensure the defendant was aware of the wrongful nature of the act or acts. In the case relating to President Trump, if the facts relating to his alleged wrongful acts are true, there is little doubt concerning his knowledge of and intent to impede justice. The intent and knowledge requirement may be easily met if President Trump conspired with others to thwart ongoing FBI investigations. For instance, if Attorney General Sessions came to an understanding with President Trump to fire of FBI Director Comey in order to thwart Comey’s investigations, such facts would strongly suggest there was an unlawful understanding between these two individuals. Thus far, given the President’s own admissions regarding Comey’s firing, the facts are unquestionably leaning in that direction.