Commentary, Defending Democracy

Ethics, legal experts: Why Donald Trump likely obstructed justice

If you’re interested in understanding why President Donald Trump likely broke federal law when it came to obstructing the investigation into the ties between Russia and his presidential campaign, you would do well to check out a report released this morning by a trio of ethics and legal experts for the Brookings Institution. In “Did President Trump obstruct justice?” authors Barry Berke, Noah Bookbinder and Norman Eisen make a compelling case that Trump’s defenses are weak and that there is good reason for the case to proceed — either in the House Judiciary Committee or perhaps even via a grand jury indictment against Trump.

This is from the executive summary:

“Arguments that the president has no potential obstruction exposure whatsoever are unpersuasive. The claim that the president’s legal authority to remove an FBI director is an absolute bar to obstruction liability is a red herring. As a matter of law, the fact that the president has the authority to take a particular course of action does not immunize him if he takes that action with the intent of obstructing a proceeding for an improper purpose. The president will certainly argue that he did not have the requisite criminal intent to obstruct justice because he had valid reasons to exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that he may have acted with an improper intent to prevent investigations from uncovering damaging information about Trump, his campaign, his family, or his top aides.

Special Counsel Mueller will have several options when his investigation is complete. He could refer the case to Congress, most likely by asking the grand jury and the court supervising it to transmit a report to the House Judiciary Committee. That is how the Watergate Special Prosecutor coordinated with Congress after the grand jury returned an indictment against President Nixon’s co-conspirators. Special Counsel Mueller could also obtain an indictment of President Trump and proceed with a prosecution. While the matter is not free from doubt, it is our view that neither the Constitution nor any other federal law grants a sitting president immunity from prosecution. Regardless of how that question is resolved, there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for that time, using a sealed indictment or otherwise, is another option for the special counsel.”

The bottom line: The case against Trump continues to grow, day by day. While investigators continue to gather facts, the report makes clear that if there is real reason to believe that the president will be called to account for his alleged misdeeds and that impeachment and criminal prosecution remain real possibilities in the foreseeable future.

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