Faced with Special Counsel Robert Mueller’s probe, President Trump’s enablers strive to place him beyond the rule of law.
Start with Trump and the FBI. No matter that, by his own admission, Trump fired James Comey to stop the Russia investigation, or that he attempted to protect Michael Flynn — and, most likely, himself — by intimidating the FBI director. As a matter of law, they insist, these actions cannot further an obstruction of justice.
This proposition is spurious — one bullet in a fusillade of sophistry aimed at our constitutional democracy.
For good reason, federal obstruction statutes are interpreted broadly. They include anyone who “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice” or “otherwise obstructs, influences, or impedes any official proceeding.”
So what legal principles insulate Trump from charges of obstruction? None. Instead, advocates offer a patchwork of discrete and legally insufficient assertions divorced from their factual and legal context.
First, apologists claim, Trump can lawfully fire an FBI director at will. True. But an otherwise lawful act can constitute obstruction if done with a corrupt intent. A president is no different than a local district attorney legally empowered to terminate an investigation — but who does so to prevent discovery of his own misconduct. Authority does not confer immunity.
Next, Trump’s advocates assert that an FBI investigation is not a “proceeding” covered by the obstruction statutes. Even were this so, one cannot lawfully obstruct an investigation connected to a grand jury — which is likely the case with Flynn.
Beyond that, courts are divided on whether impeding an FBI investigation, by itself, constitutes obstruction. Again, logic is Trump’s enemy — lying to the FBI, which is unlawful, serves the same purpose as obstruction: frustrating the search for truth. Further, the FBI is conducting a counterintelligence investigation of Russia which, precedent suggests, serves purposes which prioritize protecting its integrity.
Finally, Trump’s apologists isolate a single conversation, then cherry pick one word — Trump’s “hope” that Comey would stop investigating Flynn, they tell us, is not enough to support obstruction. But the courts have upheld obstruction charges based on expressions of “hope” when combined with leverage. Trump’s advocates conveniently, and selectively, ask us to forget that he was Comey’s superior — and America’s chief executive.
Shifting ground, Trump’s enablers complain that it is unfair to charge obstruction of an investigation into whether Trump colluded with Russia to influence an American election. Why? Because such collusion, they insist, is not a crime at all — instead Trump’s vicious persecutors are trying to politicize the law.
Skip the tricky question of treason. The federal law governing bribery of public officials — “either before or after such person has qualified” — covers those who “receive or accept anything of value” in return for “being influenced in the performance of any official act.” That certainly seems to include, as one example, a promise to reduce sanctions against Russia in return for releasing stolen e-mails to help Trump win election, or financial aid to his businesses.
Still another statute, the Logan Act, covers “any citizen of the United States” who intends to “influence the measures or conduct of any foreign government ... to defeat the measures of the United States.” As Trump’s defenders correctly note, this venerable law, long unenforced, is subject to abuse. However, we are dealing with a potential breach of national security: a presidential candidate who accepts favors from a foreign adversary in exchange for secretly promising favorable treatment. If there ever was a case for the Logan Act, this is it. We should not foreclose investigation before the facts are known.
Finally, foreign nationals are barred from making any contributions or expenditures in connection with an American election. This not only covers money, but “anything of value.” Logically, that includes hacking and releasing stolen e-mails to assist a presidential campaign, or — as Russia has in Europe — buying advertising or promulgating fake news.
In sum, federal criminal statutes support the obvious and necessary conclusion: that colluding with Russia to influence our presidential election violates American law. In this regard, Trump’s defenders notwithstanding, it is vital to know whether Trump’s business empire was financially entangled with interests directed by the Putin regime.
This brings us to Trump’s strongest, if most unsettling, argument: that even were his conduct criminal, a president cannot be indicted while in office. Though this question is unresolved, Justice Department guidelines and a body of scholarly opinion hold that criminal proceedings would unduly impede a president in executing his duties.
To this rationale his defenders add, remarkably and dubiously, that Trump’s pardoning power includes the power to pardon himself, rendering indictment pointless and placing America’s president completely beyond the reach of American law. So, too, would another step many are encouraging Trump to take — contriving to fire Robert Mueller or attempting to suppress any report of his findings. All of which, they propose, is perfectly lawful.
But this, ultimately, is where Trump’s defense consumes itself. For the sole alternative to indictment is impeachment.
Pass over a signal irony — that impeachment would impede a president at least as much as indictment. Or another: that a successful impeachment would permit indictment. Richer inconsistencies abound.
For one, the grounds for impeachment — “high crimes and misdemeanors” — are clearly broader than the criminal law. By common legal consent they cover any dereliction of presidential duty defined by Congress — including, as in the case of Richard Nixon, obstruction of justice. Yet Trump’s apologists, having placed him beyond indictment, argue that he cannot be impeached for conduct as to which he was not indicted. This is the apotheosis of self-serving circularity.
Undeterred, they further insist that the emoluments clause of the Constitution — meant to foreclose corruption of public officials by foreign governments — does not provide a criminal penalty. Pursued to its logical cul-de-sac, this means that the constitutional bar against a president taking foreign money is without a legal or constitutional remedy, freeing Trump to enrich himself with impunity by leveraging the power of his office.
Taking their arguments together, his advocates would immunize Trump from all legal or constitutional constraints. Only such unprecedented empowerment, they assure us, can prevent Trump’s persecution for crass political purposes, rescuing the world’s most powerful man from malign forces bent on his victimization. And so, in the end, American law would mirror Trump’s own narcissism.
This is the gateway to autocracy and corruption. And it would leave Americans defenseless against a president who may have committed the highest of crimes, colluding with a foreign power to attack our democracy. Of all the ways that Trump has degraded our moral and political life, his legal enablers seek to further what is, perhaps, the worst.
Richard North Patterson’s column appears regularly in the Boston Globe. His latest book is “Fever Swamp.’’ Follow him on Twitter @RicPatterson.
