What is obstruction of justice?
The question has been asked countless times since special counsel Robert Mueller’s Russia probe was released, but today it’s relevant for another reason: the impeachment inquiry.
It’s become clear that Trump’s strategy — and by extension, the GOP’s strategy — is to stand in the way of the House’s impeachment investigation by preventing key witnesses from testifying and by flooding the proceeding with bad-faith claims, personal attacks, and conspiracy theories.
Last week, for example, during the testimonies of State Department officials Bill George Taylor and George Kent, Republicans repeatedly claimed that the testimonies they were hearing were unreliable because they came second- or third-hand.
What they didn’t say, however, was that most of the people with firsthand knowledge of Trump’s actions were being blocked from testifying by the administration. In other words, Republicans are saying that people without firsthand knowledge can’t be trusted and that those with firsthand knowledge can’t testify.
Does this qualify as obstruction of justice? And if it doesn’t quite meet the legal definition of obstruction, is it an impeachable offense?
I asked Brianne Gorod, who serves as chief counsel at the Constitutional Accountability Center, to explain what obstruction of justice actually means, when it does and doesn’t apply, if the president has committed it, and why we should be worried about the precedent Republicans are setting during this impeachment trial.
A lightly edited transcript of our conversation follows.
What is obstruction of justice?
Obstruction of justice occurs when you corruptly influence or endeavor to corruptly influence a pending or official proceeding. That can be a court proceeding or a criminal investigation or a congressional investigation.
For purposes of criminal law, there are a number of questions that you have to ask.
One, was there an official proceeding? Two, was there an attempt to obstruct it? And three, did the person act with a corrupt or improper state of mind? That’s the criminal law.
Totally separate and apart from that, there is obstruction of justice as an impeachable offense. In the Constitution, the framers use the language “high crimes and misdemeanors.” And this can be a little confusing because they used that word crime, but they’re not referring to provisions of the US criminal code.
What they were talking about there were abuses of the public trust. Officials, including the president, using their powers in an effort to benefit themselves rather than the nation. And so it’s important to keep those two things separate because there can be obstruction of justice that is impeachable and warrants an official’s removal from office, totally apart from the question of whether the criminal law has been violated.
What sorts of actions would be considered obstructing justice?
It can be attempting to get an investigation to narrow its scope. It can be attempting to interfere with witness testimony. It can be attempting to interfere with evidence that the investigation may be trying to uncover. Basically, anything that can prevent investigators from doing their work, or anything that can prevent a proceeding from being carried out, falls under the umbrella of obstruction.
Everything seems to turn on this notion of “improper purpose,” or the other phrase I hear often is “corruptly influence.” What are the kinds of things that prosecutors would look at to determine whether someone was “corruptly” influencing an investigation or acting with “improper purpose”? How do you prove intent?
That’s a tricky question across the span of criminal offenses. After all, how do you prove what was going on in someone’s mind?
But courts can also look at circumstantial evidence to understand what was motivating the person. And so the question at the end of the day is, in the context of a criminal prosecution, can the prosecutor prove beyond a reasonable doubt that this person was acting with an improper purpose? Were they trying to prevent this investigation from going forward in the way that it should have with an improper reason in mind?
The obstruction statute doesn’t require that justice was actually obstructed — only that the person endeavored to impede justice, right?
That’s absolutely right. And it’s true for the criminal code and it’s true for impeachment as well. There’s certainly no requirement that the person who was trying to object instruct justice had to be successful. The point is that they were trying to interfere with an investigation.
In the case of Trump, for example, there are a lot of indications that he tried to obstruct and his subordinates didn’t listen to him and didn’t follow his commands. But that doesn’t matter. The American people should not have to hope that the president’s subordinates won’t listen to his directions.
Is obstruction of justice impeachable on its face?
Yes. It’s something that we saw in the Nixon impeachment. It’s something that we saw in the Clinton impeachment articles. And it’s something that has regularly come up in this context because it’s a prime example of the president using the powers of his office to benefit himself rather than the American people.
It’s incredibly important that we have this check on obstruction of justice because it goes to the integrity of our justice system, both within the courts and within the political process. It goes to the integrity of our constitutional system. If there have been allegations of wrongdoing, if there have been allegations of abuses of the public trust, it’s crucial that the American people be able to know the truth of what happened.
And so if a president is willing to abuse the official powers of his office to prevent the American people from knowing the truth, from knowing what happened, that’s deeply corrosive to our system of government.
Let’s talk about this impeachment inquiry. Trump and many Republicans are asserting two things at the same time. First, that any testimony from witnesses who heard second- or third-hand about Trump’s alleged extortion scheme against Ukraine is unreliable. Second, that officials with firsthand knowledge of Trump’s alleged extortion scheme are immune from congressional subpoenas because the president has the right to executive privilege.
If you accept both of these claims, then a reliable testimony isn’t possible at all. Is that obstruction of justice?
What we’ve been seeing repeatedly from this White House are really unprecedented attempts to interfere with congressional oversight and now to interfere with the House’s ongoing impeachment inquiry. And it’s really quite stunning. We’re seeing abuses of executive power and an attempt to obstruct the very process that the Constitution set up to check abuses of executive power.
Under the president’s view, this impeachment inquiry is an illegitimate process even though it is in the Constitution, even though it is something the framers believed was critically important to act as a check on the presidency. And he’s engaging in all manner of efforts to undermine the investigation — calling into question its legitimacy, trying to pressure witnesses not to cooperate, making clear that he will not participate. That in itself is obstruction of justice.
The president uses the media (Twitter and Fox News, in particular) to control the news cycle, to dictate coverage, to shape the narrative. If the president intentionally floods the public space with misinformation and lies intended to subvert the impeachment inquiry by poisoning public opinion — is that a form of obstruction?
It’s certainly a very 21st-century form of obstruction. I think it’s something that has to be considered in conjunction with all of the other claims of obstruction of justice that we know about and are learning about. The president has been engaging in tweets and an effort to intimidate witnesses, to try to encourage them to not give testimony that would be unfavorable to him.
At the same time, there are indications that he has been willing to use the official powers of the office, like dangling the pardon power, in an effort to encourage witnesses not to give testimony that’s unfavorable to him. I think in considering whether the president has engaged in obstruction of justice, it’s important to consider the entire course of conduct, both the use of official powers and the bully pulpit of the presidency.
There are a lot of arguments being thrown around that make the case that the president cannot be charged with obstruction of justice. The president is the chief law enforcement officer in the country. He or she has the authority to hire or fire subordinates. He or she has the authority to tell those subordinates to pursue or to not pursue investigations.
Do you buy that in any way?
Absolutely not. I think that gets it fundamentally wrong. The founders included impeachment as a check on the presidency precisely because they recognized how many powers the president had and they recognized that those powers could be subject to abuse.
There are any number of powers that the president has that are lawful, but if you use them for improper purposes, if you use them to try to impede an investigation, to try to prevent the American people from learning the truth, that can itself be impeachable and it doesn’t matter whether it’s a power that the president could use for a lawful purpose.
If I am a Republican voter or lawmaker who generally approves of the job that Trump is doing, why should I be concerned that he is obstructing justice? Why, in other words, is this a problem worth worrying about?
Because the kind of abuses that the president has engaged in are deeply corrosive to our system of government. And I would imagine that Republicans, if the party labels were turned around, would be deeply disturbed by the idea of a Democratic president trying to encourage foreign interference in our elections, trying to encourage or prevent an investigation designed to uncover the truth of that.
Our constitutional system depends on checks and balances. It depends on the precept that no one including the president is above the law. And that’s something that everyone across both sides of the aisle should be able to agree on.