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Obstruction of Justice continues

NWRatCon

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I know this won't work, but I would like to take the heat out of this argument by focusing on the legalities involved. Basically, there are three points I'd like to make: 1) what obstruction of justice is; 2) Obstruction that is demonstrated in the Mueller report; 3) how continued behavior of the administration is a continuation of obstruction.

I. 18 U.S. Code CHAPTER 73— OBSTRUCTION OF JUSTICE

There are several different provisions of Chapter 73 that might apply to "obstruction" discussed here, but I am going to focus on two:

18 U.S. Code § 1503. Influencing or injuring officer or juror generally - (a) Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).
and
18 U.S. Code § 1505. Obstruction of proceedings before departments, agencies, and committees -
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

I quoted the whole thing, without eliding the irrelevant/inapplicable parts, so that no one can argue I'm "hiding the ball" - and I picked those two because they seem the most relevant here.

The operative words are "endeavors to influence, intimidate, or impede." That can take, and has taken, many forms - Destroying evidence, unlawful inducements to testify falsely, threats, or just preventing disclosure.
 
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From the Justice Manual of the Department of Justice: 1736. INCHOATE OBSTRUCTION OF JUSTICE OFFENSES
Several of the obstruction of justice provisions prohibit "endeavors" to obstruct. Section 1503 of Title 18, United States Code, prohibits "endeavors" to tamper with jurors and officers of the court. The omnibus clauses of sections 1503 and 1505 prohibit "endeavors" to obstruct justice as well as actual obstructions of justice. Section 1510 of Title 18, United States Code, prohibits "endeavors" to obstruct criminal investigations through bribery.

Although "endeavor" might be thought of as a synonym for "attempt," the Supreme Court has concluded that "endeavor" is broader than "attempt." United States v. Russell, 255 U.S. 138 (1921). In Russell, the Supreme Court held:

The word of the section is "endeavor," and by using it the section got rid of the technicalities which might be urged as besetting the word "attempt," and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent . . . . The section . . . is not directed at success in corrupting a juror but at the "endeavor" to do so. Experimental approaches to the corruption of a juror are the "endeavor" of the section.
It concludes: "It follows that an endeavor to obstruct justice need not be successful to be criminal."

The elements of obstruction are described as
Overview
Someone obstructs justice when that person has a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, that person must not only have the specific intent to obstruct the proceeding, but that person must know (1) that a proceeding was actually pending at the time; and (2) there must be a connection between the endeavor to obstruct justice and the proceeding, and the person must have knowledge of this connection.

§ 1503 applies only to federal judicial proceedings. Under 18 U.S.C. § 1505, however, a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal administrative agency. A pending proceeding could include an informal investigation by an executive agency.
 
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I know this won't work, but I would like to take the heat out of this argument by focusing on the legalities involved. Basically, there are three points I'd like to make: 1) what obstruction of justice is; 2) Obstruction that is demonstrated in the Mueller report; 3) how continued behavior of the administration is a continuation of obstruction.

I. 18 U.S. Code CHAPTER 73— OBSTRUCTION OF JUSTICE

There are several different provisions of Chapter 73 that might apply to "obstruction" discussed here, but I am going to focus on two:


and


I quoted the whole thing, without eliding the irrelevant/inapplicable parts, so that no one can argue I'm "hiding the ball" - and I picked those two because they seem the most relevant here.

The operative words are "endeavors to influence, intimidate, or impede." That can take, and has taken, many forms - Destroying evidence, unlawful inducements to testify falsely, threats, or just preventing disclosure.

Hmm... are executive employees "officers of the court"?
 
II. The Mueller Report - Evidence of Obstruction

This will take a great deal of unearthing, some of which has been done by others. To introduce the topic, though, I am going to cite primarily to others who have provided analyses. I've read the report myself (Volume I, and Volume II) - and the appendices - but of course most of the underlying evidence still has not been publicly released (more on that later). And, also, there is the letter which now over 800 former prosecutors have joined, that also outlines some of the findings.

For a more in-depth look at the Mueller findings, I found these stories helpful:
Five Things I Learned From the Mueller Report (Ben Wittes, via the Atlantic). Ben Wittes is the editor-in-chief of Lawfare.
Obstruction of Justice in the Mueller Report: A Heat Map by Quinta Jurecic, also of Lawfare. Related is Richard Hoeg's twitter feed analysis, including a chart that is very helpful in addressing each of the 12 incidents that Mueller outlines (Hoeg Law).
 
Hmm... are executive employees "officers of the court"?

Depends on their role. Attorneys are. But obstruction is not limited to judicial proceedings, so I am not sure of the import of the question.
 
III. Continuation of administration's obstruction.

The obstruction of justice detailed in the Mueller report has continued unabated since the report's release, and has been both expanded in scope and gotten more brazen in its aspect.
Trump and allies accused of blocking 20 investigations and 79 requests for documents (ABC). Indeed, today the administration has taken its most abusive stance yet. White House says Congress has no 'legitimate role' in investigating Trump, rejects document demands (USA Today). White House Makes It Official: It Will Reject Democrats’ Request for Trump Records (Mother Jones) (Includes entire content of WH letter).
Cipollone’s claim that Democrats lack a legislative purpose to back their demands has been central to several of Trump’s legal team’s refusals to comply with Democratic inquiries. The line was repeated as recently as Tuesday when a group of lawyers representing the president resisted the House Intelligence Committee’s requests for documents related to its investigation into whether the president’s lawyers attempted to obstruct the panel’s Russian interference probe. It was also used by Treasury Secretary Steve Mnuchin earlier this month when he refused to turn over Trump’s tax returns to the House Ways and Means Committee.
This position mirrors almost precisely the position Trump's private lawyers argued this week, Trump's lawyers question Congress' power to investigate him, battle House over demand for financial records
(USA Today), and raise the question of whether the White House Counsel is instead, like AG Barr, acting as Trump's private attorney, rather than representing the office, and the people of the United States.

Moreover, the lawyers' claims are completely meritless, as well as a reversal of the GOP's position just two years ago. The many problems with Trump’s legal claim that Congress can’t investigate him (WaPo)
The White House’s position on Congress’s authority to investigate President Trump, it seems, is that it has none. A federal judge practically laughed at Trump’s attorney Monday when he made that argument, but White House counsel Pat Cipollone has now doubled down.
....
When Trump lawyer William Consovoy tried to argue that Congress had no such right, [D.C. District Court Judge Amit] Mehta noted that this standard would render illegal the congressional Watergate and Whitewater investigations, which led to the resignation of one president and the impeachment of another.

Mehta asked whether “a president was involved in some corrupt enterprise, you mean to tell me, because he is the president of the United States, Congress would not have power to investigate?” Consovoy answered in the affirmative, if it was “not pursuant to its legislative agenda.”

The ludicrousness of the President's position is obvious: The DoJ (via AG Barr) has declined to currently prosecute the President for existing obstruction activity because he is the sitting President, although the basis for that OLC opinion is, in part, that "Congress (through its own investigatory powers) would likely pursue, collect and preserve evidence as well." Now they are trying to assert that Congress can't even do that, in direct contravention of existing (if fundamentally flawed) opinions.
So how do you hold a president accountable for illegal actions? The Justice Department has determined that it can’t indict a sitting president. Given that policy, special counsel Robert S. Mueller III decided he couldn’t even accuse Trump of the crime of obstruction of justice. The only remedy for presidential wrongdoing, then, is through impeachment, which is enshrined in the Constitution. According to Consovoy and Cippolone’s logic, though, the Justice Department can only assemble the evidence and Congress can do nothing but decide whether to impeach.
But, of course, in this case, the AG is also taking the position that the Justice Department doesn't have an obligation to give that evidence to Congress, either.

It appears to me that this position, while politically expedient, it will ultimately end in disaster for the President (and probably in short order), and ultimately rebalance the relative powers of the branches in favor of the Congress.
 
Prior to my post there are seven posts and six of them are yours... that should tell you how interested people are in this...
 
Prior to my post there are seven posts and six of them are yours... that should tell you how interested people are in this...

Sadly, yes. I was hoping substance might matter. It was a misapprehension.
 
Everyone on this forum is guilty of obstruction of justice for publicly trying to influence investigations and officials conducting investigations.
 
Sadly, yes. I was hoping substance might matter. It was a misapprehension.

On the contrary, I enjoyed your posts and appreciate the citations.

Don't mind the whiners. They never do any in-depth analyses and get jealous.
 
On the contrary, I enjoyed your posts and appreciate the citations.

Don't mind the whiners. They never do any in-depth analyses and get jealous.

I intend to continue on, but I do get discouraged by the dreck that gets posted. See post #11.
 
I intend to continue on, but I do get discouraged by the dreck that gets posted. See post #11.

Maybe I should learn from your posting style friend. I know alt-righters especially like to swarm and drown out places though I cant exactly say how bad its gotten here.
 
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In consideration of this issue, I offer the following observations: first, if one is arguing the "niceties" of law (i.e., "splitting hairs"), one has already lost the factual argument. Barr: It’s Not Obstruction of Justice If the Obstruction Works (NYMag).
The most illuminating moment in William Barr’s Senate testimony came when he elucidated the bizarre theory of presidential immunity that got him the job in the first place. If an investigation is “based on false allegations, the president does not have to sit there constitutionally and allow it to run its course,” Barr explained. “That is important, because most of the obstruction claims that are being made here, or episodes here, do involve the exercise of the president’s constitutional authority. And we do know now that he was being falsely accused.”
Consider the brazen circulatory of that position. At least Nixon was succinct when he said (also wrongly), "if the president does it, it's not illegal."

The other primary defense of the indefensible is that the laws weren't drafted with the president in mind, so they don't apply to him. The Mueller Report’s Weak Statutory Interpretation Analysis (Lawfare, Jack Goldsmith). As Ben Wittes succinctly observed "An initial background observation is that Goldsmith’s view of the matter leads to some genuine absurdities. This is not to say that his view of the law is wrong, just that if it’s right, the law is an ass." In Defense of Mueller’s Obstruction Theory: A Reply to Jack Goldsmith (Lawfare). I submit that Goldmith's and Barr's theory is both absurd and wrong.
In other words, if Goldsmith is right, it is lawful for the president to, say, walk into a grand jury and lie knowingly and intentionally and repeatedly as long as there’s some plausible argument, even an attenuated one, that the lies are intended to protect, say, a secret diplomatic initiative. I suspect this argument would come as a surprise to Bill Clinton, who was accused of perjury and apparently did not know that the only defense he really needed was a thin-reed claim that his self-protective lies under oath were actually designed to insulate his ability to conduct foreign policy.

These arguments are both predicated on a false premise: that the Constitution created an executive office that is not just independent of, but superior to, the legislative authority (the absurd "unitary executive" theory). They have no support in legislative history, legal precedent, or constitutional structure. A triple fail.
First, there’s no such categorical “clear statement rule” to begin with; second, § 1512(c)(2) simply doesn’t bear the construction that Barr and Goldsmith propose; and third, even if there were a “clear statement rule” of construction, § 1512(c)(2), as Mueller construes it, does not implicate that rule, even as applied to Trump’s exercise of his removal and directory authorities.
Why Robert Mueller Is Right that the Obstruction Statutes Apply to the President (Just Security).

These arguments are trotted out not just to defend the President's past obstruction, but to excuse continued obstruction, and to support his future obstruction (by way of pardons). That cannot be, and is not, right.
 
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More light on Trump's obstruction of justice for anyone interested.

Judge Andrew Napolitano of Fox News has long argued for libertarian positions on the nation's largest cable news network, consistently holding George W. Bush, Barack Obama, and now Donald Trump accountable for alleged abuses of power.

In Napolitano's analysis, the Mueller report on Russian interference in the 2016 election lays out multiple instances in which President Trump attempted to interfere with the investigation, thus making him guilty under federal laws governing the obstruction of justice.

The president responded with a series of hostile tweets claiming, among other things, that Napolitano had asked to be named to the Supreme Court and requested a pardon for a mutual friend.

Napolitano sat down with Reason's Nick Gillespie to defend his name, lay out his case against the president, explain why Attorney General William Barr has been bad since his days in the George H.W. Bush administration, and put Donald Trump's presidency in a historical and constitutional context.

 
Mnuchin should be in jail. Why is he still free? Who is stretching this out more, the administration, or the Democrats?
 
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