WASHINGTON — The invaluable Lawfare bloggers explain that while obstruction of justice is normally hard to prove, in President Donald Trump’s case there is an extraordinary amount of evidence that he intended to curtail the investigation of former national security adviser Michael Flynn and the Trump campaign’s possible collusion with Russian officials:
“In this instance there’s at least prima facie evidence that would tend to support inferences of obstruction. According to the memo, after all, a conversation took place in which the President asked the FBI director to ‘see your way clear to letting this go, to letting Flynn go,’ and, in the [New York] Times’s words, ‘told Mr. Comey that Mr. Flynn had done nothing wrong.’ So assuming the memo is accurate, there’s at least an act that a reasonable person would understand as seeking to influence the investigation. As the Times story notes, ‘[t]he existence of Mr. Trump’s request is the clearest evidence that the president has tried to directly influence the Justice Department and F.B.I. investigation into links between Mr. Trump’s associated and Russia.’ While in and of itself, the request could be understood as just a plea for mercy, which is not obviously obstructive, the fact that it comes from a superior with the power to remove the investigator-alongside the fact that Trump then did fire Comey-makes obstruction a plausible reading of the apparent facts.
“There are other elements here that also make a case more plausible. For one thing, there’s a contemporaneous memo. There’s also a witness: Comey himself, who could presumably testify as to the circumstances of the meeting. To the extent anyone claimed his story was a subsequent fabrication, the memo could be used as evidence to rebut that claim.”
However, it is not necessary to prove beyond a reasonable doubt that the president obstructed justice. We are now talking about impeachment. “The critical point is that impeachment for obstruction of justice is ultimately not just a legal question; it’s also a political question, albeit a political question highly inflected by the law and often discussed in the language of the law,” the Lawfare post explains. “The boundaries of the impeachable offense are not coextensive with the boundaries of the criminal law.” In other words, obstruction of justice is what “a majority of the House of Representatives and a two-thirds majority of the Senate” say it is if the goal is to remove the president so that he can do our democratic institutions and national security no further injury. If Republicans do not act first and are shellacked in the 2018 elections, obstruction may be what a majority of a Democratic-controlled House and two-thirds of the Senate say it is.
Several points should be kept in mind.
First, the underlying question of possible collusion between the Trump campaign and Russia is virtually irrelevant. The issue is now the alleged obstruction by the president once in office.
Second, the problem does not end with the president. To the extent that the attorney general and vice president were involved, they, too, are in peril. Third, unlike Richard Nixon, Trump may never be forced to resign. He is looking at going down in history as a joke, the worst and most inept president ever, someone who couldn’t survive his first year. Knowing that fate, he would struggle to hold on to power. However, if the House proceeds with impeachment, it can delve into conflicts of interest, attempts to intimidate judges and violations of the Constitution’s emoluments clause. Once Congress starts subpoenaing business records to explore those issues, Trump might flee rather than reveal his finances, which are apparently so troubling that he has refused to reveal them.
Finally, Trump went to war with the media and the intelligence community, trying to destroy sources of objective truth. This was a grave error insofar as both those institutions are incentivized to demonstrate their professionalism, courage and devotion to the Constitution. The speed with which new, damning facts surface will likely increase. Trump chose to demonize the wrong people.
Jennifer Rubin is a Washington Post columnist.