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What’s the evidence for obstruction of justice?

What does one do when accused of a crime? Guilty or innocent, one denies it. A modern version of that is to say it’s “fake news.” So, when President Donald Trump denies the “Russia connection,” and calls the media coverage of the alleged coverup “fake news,” it doesn’t necessarily prove anything, one way or the other.

What we have to do is watch for the buildup of actual evidence generated by official investigations and by a free press. There’s evidence aplenty. Already the evidence for obstruction of justice is strong, and getting stronger by the day, suggesting that Trump himself tried to undermine the official investigation into the Russia connection. How so?

Specifically, Trump is accused of: (a) demanding a “pledge of loyalty” from then-FBI Director James Comey; (b) telling Comey to “let go” the investigation of then-National Security Adviser Michael Flynn; (c) asking the CIA to persuade Comey to “back off,” and (d) calling on Comey to “lift the cloud” on the Russia connection. Previously, Trump had engaged Paul Manafort and Carter Page, both of whom were known to have worked as agents for Putin’s Russia, and to have lied about it repeatedly.

But then, Trump realized that Comey and the FBI were nevertheless going to continue the normal course of investigation. So, on May 9 Trump: (e) fired Comey, giving contradictory reasons for doing so, and (f) told Russian officials that firing Comey had “taken off the pressure” from the Russia investigation. Thus, in his own words, Trump seemed to confirm the connection.

When on May 16 the Justice Department appointed Robert Mueller as Special Counsel for the Russia investigation, Trump reportedly: (g) accused Attorney General Jeff Sessions of “disloyalty” for not blocking the Mueller appointment, and then (h) ordered the firing of Mueller, before White House counsel Donald McGahn resisted Trump by threatening his own resignation.

Immediately thereafter, Trump: (i) called for the firing of FBI Deputy Director Andrew McCabe (who subsequently took “early retirement”), and (j) accused the FBI, the CIA, the Department of Justice and other agencies and the media of  incompetence, bias and “fake news.” Then Trump: (k) made a series of phone calls to select members of the U.S. Senate and House encouraging them to terminate all Russia investigations, and start investigating the FBI and Hillary Clinton (again) instead.

In response to this White House pressure on Congress,  Representative Devin Nunes, chairman of the House Intelligence Committee, authorized  the drafting and release of a “secret memo” or report written by Republican congressional aides, purportedly summarizing closed-door testimony, in a cherry-picked political effort to show that the FBI and the Justice Department had abused their authority in the early days of investigation of the Russia connection, by using information from a British intelligence officer, and in particular by eavesdropping without warrant on Carter Page (who was later indicted for repeatedly lying to the FBI and Congress.)

Despite warnings by the FBI that the Republican memo revealed certain sensitive information about U.S. intelligence operations affecting national security, and at the same time the memo contained “material omissions of fact and numerous false statements,” President Trump indicated he was willing to give a green light to its public release. Not once did Trump express concern for the proven facts that the Russians had hacked the 2016 election and flooded cyberspace with “fake news,” undermining American democracy. In response,  congressional Democrats wrote their own counter-report (still blocked from publication) and called for the removal of Chairman Nunes.

White House insiders meanwhile reported (anonymously) that President Trump was so worked up by all this that he was thinking of getting at Special Counsel Robert Mueller and undermining the investigation by firing the “recused” Attorney General Jeff Sessions and Deputy Attorney General Robert Rosenstein for failing to show “loyalty” to Trump by allowing the continued investigation of the Russia connection. The president appeared to believe the officials exist to protect himself, not the nation.

It is difficult to imagine a clearer case for “criminal intent to obstruct justice.” Of course, the degree of criminality for obstructing justice depends on the degree of criminality of the underlying substantive crime that is alleged. Contrary to the biased assertions of law professor Alan Dershowitz and a few (very few) others, the Russia connection does indeed involve potential violations by Russia, and by the Trump campaign and  Trump administration, of a number of U.S. laws, including U.S. election laws, U.S. emoluments law, the Logan Act, the Foreign Corrupt Practices Act, the Computer Fraud and Abuse Act, U.S. Perjury laws, and, yes, the ultimate U.S. constitutional provision that defines treason as giving “aid and comfort to enemies of the United States.”

The (initially denied) infamous and possibly treasonous meeting of June 9, 2016, at Trump Tower with Russian agents appears to have set the stage for a deal whereby if the Russians would help provide dirt on Hillary Clinton, hack the 2016 election with “fake news,” and continue financing Trump and Kushner enterprises, then the Trump administration, once in office, in return would waive sanctions against Russia and allow Putin’s Russia to keep the Russian-speaking lands they had illegally invaded and occupied in Crimea and Eastern Ukraine.

If criminality is demonstrated, what are the possible consequences under U.S. parliamentary procedure, and what could be the liability of any and all of the accused  under U.S. law?  Felonies, such as capital murder and treason, as well as conspiracy to conceal such wrong-doings, if proven, are “high crimes” for which there is no escape from potential impeachment in Congress and further prosecution in the courts of law.  

This applies to all actors, even to a sitting president. There is no possibility of immunity or pardon for anyone. Ultimately, any attempt to undermine lawful investigation of the facts is itself evidence, if not proof, of guilt.

 

Anthony Piel is a former director and general legal counsel of the World Health Organization.