Update: Trump’s Ongoing Obstruction of Justice (October 10, 2017) — with links to Brookings Report

Update (October 10, 1017)

Jennifer Rubin has pointed out and summarized the powerful public case that President Donald Trump has committed obstruction of justice, written by Barry Berke and Noah Bookbinder, and Norman Eisen, and published by Brookings today.

See,

Jennifer Rubin, “Laying out a comprehensive case that Trump obstructed justice,” Washington Post, October 10, 2017 (11:15 AM)

Barry Berke,Noah Bookbinder, and Norman Eisen, “REPORT: Presidential obstruction of justice: The case of Donald J. Trump,” Brookings, October 10, 2010 (108 pp.) The Report may be downloaded here.

The Appendix may be downloaded here.

With this evidence already in the public record, one can only imagine the additional evidence that Special Prosecutor Robert Mueller has developed, and will use in forthcoming indictments and his report to the Congress.

***

Original article (published on July 22, 2017)

President Donald J. Trump has for some time been engaged in an ongoing effort to influence Robert Mueller’s investigation of his and his associated ties with Russia, their cooperation and collusion with Russia, and the potential conspiracy they participated in to influence the 2016 elections in the United States.

Strong prima facie case exists in the public record, in the form of James Comey’s testimony before Congress, and in the president’s own public admissions that Trump has committed obstruction of justice in attempting to get
Comey to back off on the Michael Flynn inquiry, and fired Comey to achieve that purpose and to halt the investigation in to his own affairs.

But few commentators have focused on the fact that on an almost every day basis, Trump has been trying to influence the investigation, with threats against Mueller and other actions.

Consider his behavior in the light of the following provisions of the relevant federal statutes, as stated in the United States Code.

RELEVANT PROVISIONS OF U.S. CRIMINAL LAW BEARING ON OBSTRUCTION OF JUSTICE

18 USC Ch. 73: OBSTRUCTION OF JUSTICE
From Title 18—CRIMES AND CRIMINAL PROCEDUREPART I—CRIMES

§1505. Obstruction of proceedings before departments, agencies, and committees

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—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

§1512. Tampering with a witness, victim, or an informant


(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1) influence, delay, or prevent the testimony of any person in an official proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;

(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;

(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or

(D) be absent from an official proceeding to which such person has been summoned by legal process; or

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than 20 years, or both.

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,

shall be fined under this title or imprisoned not more than 20 years, or both.

(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—

(1) attending or testifying in an official proceeding;

(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense or a violation of conditions of probation 1 supervised release,,1 parole, or release pending judicial proceedings;

(3) arresting or seeking the arrest of another person in connection with a Federal offense; or

(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;

or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.

(e) In a prosecution for an offense under this section, it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.

(f) For the purposes of this section—

(1) an official proceeding need not be pending or about to be instituted at the time of the offense; and

(2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.

(g) In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance—

(1) that the official proceeding before a judge, court, magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency; or

(2) that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on behalf of the Federal Government or serving the Federal Government as an adviser or consultant.

(h) There is extraterritorial Federal jurisdiction over an offense under this section.

(i) A prosecution under this section or section 1503 may be brought in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected or in the district in which the conduct constituting the alleged offense occurred.

(j) If the offense under this section occurs in connection with a trial of a criminal case, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.

(k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

§1515. Definitions for certain provisions; general provision

(a) As used in sections 1512 and 1513 of this title and in this section—

(1) the term “official proceeding” means—

(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;

(B) a proceeding before the Congress;

(C) a proceeding before a Federal Government agency which is authorized by law; or

(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

(3) the term “misleading conduct” means—

(A) knowingly making a false statement;

(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement;

(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity;

(D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or

(E) knowingly using a trick, scheme, or device with intent to mislead;

(6) the term “corruptly persuades” does not include conduct which would be misleading conduct but for a lack of a state of mind.

Readers may analyze President Trump’s actions, and those of others caught up in Robert Mueller’ investigation into ties to and potential conspiracy with Russians in the light of the texts of these statutes.

Spirit of Publius

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