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Did the President Obstruct Justice?
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When the Department of Justice designated Robert Mueller as special counsel to take over the FBI investigation of the Trump campaign in May 2017, Mueller’s initial task was to determine if there had been a conspiracy — an illegal agreement — between the campaign and any Russians to receive anything of value.

When former FBI Director James Comey informed Mueller that he believed Trump fired him because he had declined Trump’s order to shut down the investigation of Trump’s campaign and of his former national security advisor, retired Lt. Gen. Michael Flynn, Mueller began to investigate whether the president had unlawfully attempted to obstruct those investigations.

We now know why Trump was so anxious for the FBI to leave Flynn alone.

Flynn was charged and pleaded guilty to lying to the FBI about whether he discussed sanctions in a telephone call with then-Russian ambassador to the United States Sergey Kislyak, before Trump became president. Such a communication could have been unlawful if it interfered with American foreign policy.

So, when Trump learned of the lie, he fired Flynn. Yet in his plea negotiations with Mueller, Flynn revealed why he discussed sanctions with Kislyak — because the pre-presidential Trump asked him to do so. An honest revelation by Trump could have negated Flynn’s prosecution. But the revelation never came.

Last week, Attorney General William Barr released publicly a redacted version of Mueller’s final report. That report concluded that notwithstanding 127 confirmed communications between the campaign and Russians from July 2015 to November 2016 (Trump said there were none), the government could not prove the existence of a conspiracy.

On obstruction, the report concluded that notwithstanding numerous obstructive events engaged in by the president personally, the special counsel would not charge the president and would leave the resolution of obstruction of justice to Congress. Congress, of course, cannot bring criminal charges, but it can impeach.

Trump initially claimed that he had been completely exonerated by Mueller — even though the word “exoneration” and the concept of DOJ exoneration are alien to our legal system. Then, after he learned of the dozen or so documented events of obstruction described in the report, Trump used a barnyard epithet to describe it.

The Constitution prescribes treason, bribery or other high crimes and misdemeanors as the sole bases for impeachment. We know that obstruction of justice constitutes an impeachable offense under the “high crimes and misdemeanors” rubric because both presidents in the modern era who were subject to impeachment proceedings — Richard Nixon and Bill Clinton — were charged with obstructing justice.

Obstruction is the rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.

ORDER IT NOW

Thus, if my neighbor tackles me on my way into a courthouse in order to impede a jury from hearing my testimony, and, though delayed, I still make it to the courthouse and testify, then the neighbor is guilty of obstruction because he attempted to impede the work of the jury that was waiting to hear me.

Mueller laid out at least a half-dozen crimes of obstruction committed by Trump — from asking K.T. McFarland to write an untruthful letter about the reason for Flynn’s chat with Kislyak, to asking Corey Lewandowski and then Don McGahn to fire Mueller and McGahn to lie about it, to firing Comey to impede the FBI’s investigations, to dangling a pardon in front of Michael Cohen to stay silent, to ordering his aides to hide and delete records.

The essence of obstruction is deception or diversion — to prevent the government from finding the truth. To Mueller, the issue was not if Trump committed crimes of obstruction. Rather, it was if Trump could be charged successfully with those crimes.

Mueller knew that Barr would block an indictment of Trump because Barr has a personal view of obstruction at odds with the statute itself. Barr’s view requires that the obstructer have done his obstructing in order to impede the investigation or prosecution of a crime that the obstructer himself has committed. Thus, in this narrow view, because Trump did not commit the crime of conspiracy with the Russians, it was legally impossible for Trump to have obstructed the FBI investigation of that crime.

The nearly universal view of law enforcement, however, is that the obstruction statute prohibits all attempted self-serving interference with government investigations or proceedings. Thus, as Georgetown Professor Neal Katyal recently pointed out, former Detroit Mayor Kwame Kilpatrick was convicted of obstruction for interfering with an investigation of his extramarital affair, even though the affair was lawful.

Famously, Martha Stewart was convicted of obstruction of an investigation into her alleged insider trading, even though the insider trading charges against her had been dismissed. And a federal appeals court recently upheld the obstruction conviction of a defendant who suborned perjury in order to impede the prosecution of the sister of a childhood friend.

On obstruction, Barr is wrong.

So, the dilemma for House Democrats now is whether to utilize Mueller’s evidence of obstruction for impeachment. They know from history that impeachment only succeeds if there is a broad, national, bipartisan consensus behind it, no matter the weight of the evidence or presence of sophisticated legal theories.

They might try to generate that consensus by parading Mueller’s witnesses to public hearings, as House Democrats did to Nixon. Yet, when House Republicans did that to Clinton, and then impeached him, they suffered politically.

The president’s job is to enforce federal law. If he had ordered its violation to save innocent life or preserve human freedom, he would have a moral defense. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, Robert Mueller 
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  1. What should be considered relevant is the real purpose of the Mueller investigation. See Paul Craig Roberts’ ” The three Purposes of Russiagate “.

  2. I agree with Napolitano on the legal merits.

    I also believe that the article posted almost immediately above his by C.J. Hopkins provides the other side of the story, that the real reason there was a Russiagate investigation by Meuller at all and despite the paucity of real evidence of a conspiracy with Russia was to land the famously ill-tempered Trump in a situation where his hot temper would nearly certainly lead him to obstruct an investigation.

    In other words, it was a process crime trap from the beginning conducted by the every wily intelligence services, the Justice Department and the White House.

    Perhaps Barr, realizing the true nature of the investigation, decided that it was unfair to so insidiously take advantage of an old man’s temper and used a different line of reasoning to prevent an indictment of the President. If so and in my view, he did the right thing.

    Congress still has the right to impeach. Meuller seems to have punted that decision to Congress given that Barr foreclosed the effort to indict. And, I pray to God every night that the Democrats do indeed vote to impeach.

    I do so because I know absolutely that 1) the Senate won’t convict and 2) that their voting to impeach will infuriate the Right and also tend to make the independent voters like me favor voting for Trump. Why? Simply because I’m smart enough to know how dastardly this trap was from the outset, and, I know that it was intended to disenfranchise more than half the electorate who voted in the 2016 election…voters like me. And, that infuriates me.

    • Agree: mark green, Dan Hayes
  3. I think it might have been obstruction of injustice.

  4. The Judge is Napping: he is being uncharacteristically Naive.
    The Russia Hate Hoax was (and still is) a leftist attempt to overturn a lawful election.
    Instead the Napper should be calling for full investigation and prosecution of the FBI and Hillary and Fusion. If democracy is unwilling to defend its justice and electoral systems (as with the southern border), how will it survive?

    • Replies: @anonymous
  5. A123 says:

    That was the exact phrase I was going to use.

    The “investigators” knowingly and with malice of forethought presented false information to a judge to obtain a warrant. Everything gained by that crime against the Court System is inadmissible as “Fruit of the Poisionous Tree”.

    Trump’s refusal to going along with investigator misconduct is best described as “Obstruction of a Fraud Against the Court” or in shorter form “Obstruction of Injustice”. In fact, the oath of office is to protect the nation from enemies foreign and domestic. The oath REQUIRED the Trump administration to stand against the domestic enemy’s attempt to intentionally undermine the nation’s judicial system.

    • Agree: 95Theses
    • Replies: @mark green
  6. @A123

    Well said. Trump has many faults but this ‘investigation’ was, from the start, a politicized attempt to reverse the outcome of an election using devious, legalistic means.

    Napolitano, like many legal scholars, is unable to see the forest for the trees. Judicial tyranny is on the rise.

    • Agree: MB
  7. fnn says:

    Such a communication could have been unlawful if it interfered with American foreign policy.

    What law is that? The Logan Act?

  8. buckwheat says:

    This asshole’s arguments against Trump are juvenile at best. And to think this jerkoff actually was a judge at one point. It appears he is sucking up to the liberals to get a paying gig on CNN or MSNBC where his heart lies. He is long past being an unbiased columnist and is becoming a humorist, I know because reading his shtick makes me burst out in uncontrollable laughter.

    • Replies: @Authenticjazzman
  9. KenH says:

    Judge Nappy hates Trump and I wish he would preface all of his columns with that admittal so people would see that he’s not the dispassionate legal eagle that he presents himself as. Mueller had a major hard on for Trump and if he truly obstructed the investigation by engaging in the activities described in this article then why did Mueller opt not to indict?

    The Mueller team issued over 2000 subpoenas and executed over 500 search warrants over an almost two year period, so any “obstruction” sure didn’t amount to very much nor did it impede Mueller in the slightest.

    No doubt Trump was shell shocked that he was the target of a deep state coup and possibly made some questionable decisions during the course of the investigation, but the case for obstruction is pretty weak unless your name is (((Adam Schiff))), (((Jerold Nadler))), AOC and now Judge Nappy.

    • Agree: buckwheat
  10. anonymous[340] • Disclaimer says:
    @SeekerofthePresence

    Mr. Napolitano is not “being uncharacteristically Naive.”

    Since November 2017, I and several other commenters have noted his carrying water for the Establishment’s priestly (lawyer) class in the context of Russiagate. If you’re willing to take the time to review what he’s said (and not, such as what you’ve pointed out, and his avoidance of Assange), you’ll see that he is no longer to be trusted. He is now faithfully serving as St. Mueller’s altar boy.

    Mr. Napolitano’s “Freedom Watcher” title has become a sick joke. How can a columnist supposedly devoted to natural and Constitutional rights celebrate the criminalization of thought? Read again and think about how his words could be applied to dissidents:

    “Obstruction is the rare crime that is rarely completed. Stated differently, the obstructer need not succeed in order to be charged with obstruction. That’s because the statute[*] itself prohibits attempting to impede or interfere with any government proceeding for a corrupt or self-serving purpose.[**]”

    Or this: “The essence of obstruction is deception or diversion — to prevent the government from finding the truth.”

    When government can declare itself victim, resistance isn’t just futile, it’s forbidden. As another commenter has noted recently, Mr. Napolitano is a statist.

    ……..

    * It is typical of “Judge” to avoid quoting from or even citations to statutes, cases, etc.

    ** Criminal laws that hinge on a defendant’s “purpose” implicate the policing of thought.

  11. Trump has caused Napolitano to transform from common law-libertarian to hypertechnical legal positivist. Powerful!

  12. I don’t like Trump at all, but it does seem ridiculous to claim that he is guilty of “obstruction of justice” when “justice” is nothing more than a political gambit to embarrass the head of state.

    You can hardly expect someone who is under investigation in this way to bend over and touch his toes to assist the prosecution in building a case.

    To say the least, the meaning of the word “justice” is being extremely stretched here.

    I am sure that things were done during the electoral campaign that should not, if going strictly by the book, be done, however remember that right up to the day of the election Trump was regarded as extremely unlikely to win and was hardly taking the campaign seriously.

  13. Anonymous [AKA "George 2"] says:
    • Replies: @anonymous
  14. buckwheat says:

    That this dumb Son of a Bitch Napolitano ever thought he’d be on the Supreme Court is the funniest thing I read today. His hard on for Trump makes him look like the fool that most people already know he is.

  15. @buckwheat

    In Italy they say : “It is more dangerous to place your fate in the hands of lawyers/judges than to stick your head in the mouth of a Lion”.

    In America, due to the overwhelming influence of German immigrants, fork-tongued, underhanded authority figues such as judges, attorneys, journalists, medicos, politicians, in other words all of the vile assholes who cause untold strife and suffering, these scumbags are worshiped such as in Germany, where they kiss the ground these tyrants walk upon.

    The dumb-ass Krauts hate DT with an unsurpassed passion, one of the reasons being : He is not a real politician.

    Authenticjazzman “Mensa” qualified since 1973, airborne trained US Army vet, and pro Jazz artist.

  16. anonymous[340] • Disclaimer says:
    @Anonymous

    I’ve said repeatedly in these threads that Mr. Napolitano began openly carrying water for the Establishment on RussiaGate in November 2017. That has always seemed an odd time, but this supposed spurning may explain it. From Wikipedia:

    “During the 2016 campaign, Trump had released two lists of potential nominees to the Supreme Court. After taking office, he nominated Neil Gorsuch to succeed Scalia, and Gorsuch was confirmed in April 2017. In November 2017, five more names were added to the previous lists of potential nominees. In June 2018, Associate Justice Anthony Kennedy announced his retirement, creating a second vacancy on the Supreme Court.”

    Will “Judge” respond?

  17. eah says:

    ‘Did the President Obstruct Justice Mueller?’ — that’s what you meant, right? — because I don’t think that in this case, ‘Justice’ is the same as a hack like ‘Mueller’ — take a look at a red/blue reporting district map of the 2016 election and you’ll see that Trump trounced Clinton in number of reporting districts won — if you remove CA and NY, which together account for approx 18% of the population, Trump handily beat Clinton in both electoral and popular votes — the same is true if you remove the metropolitan areas of LA, SF, NYC, and Chicago, which account for less than 10% of the US population.

    The ‘Russia collusion’ charge was prima facie absurd from the beginning because it relied on the asinine claim that Russian influence was most effective in areas of the country elites regard as full of hicks and rubes (‘deplorables’), people who in their minds would probably have trouble finding Russia on a map.

    All of it was a disgraceful waste of taxpayer money, which you did not have the integrity to even mention.

    You fucking asshole.

    • Replies: @eah
  18. eah says:
    @eah

    Compare the ‘Russia collusion’ bullshit with the very real and obvious efforts of tech companies to censor political dissidents.

    But pay no mind — carry on with the ‘muh Russia’ and ‘muh obstruction’ nonsense — just not with my goddamn money and not with people on the public payroll.

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