Trump had plenty of reasons to obstruct Mueller’s investigation, whether or not there was an underlying crime. The most obvious one has been staring us in the face all along.
Attorney General William Barr’s summary of special counsel Robert Mueller’s conclusions, in the fancy language of lawyers, impeaches itself. That means that its own words and reasoning call some of Barr’s conclusions into doubt, particularly Barr’s eagerness to say that Donald Trump can’t be proven to have obstructed justice.
It is hard for any of us to know how much credence to give Barr’s précis of the Mueller investigation without knowing more about the evidence. Barr’s letter, however, acknowledges that much and pledges to work to disclose as much as he can without violating Federal Rule of Criminal Procedure 6(e), which bars making public grand jury proceedings. But the attorney general’s eagerness to clear Trump of possible obstruction of justice, after having the report in hand for less than 48 hours, is unbecoming of his office and Mueller’s two-year investigation. Furthermore, some of the reasoning in his letter is clearly deeply flawed.
In particular, Barr’s conclusion that obstruction can’t be proven beyond a reasonable doubt involves bootstrapping that is utter nonsense in this case. Barr—just like Trump’s lawyer Rudy Giuliani—claims that ordinarily obstruction requires a nexus to an underlying crime. Because Mueller found the evidence insufficient to prove that Trump actively conspired with the Russians to interfere with the election, traditional legal reasoning would say he’s not likely to have committed obstruction either. Barr says, “Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.”
This sounds like arcane legal stuff, but it’s actually a matter of common sense. In judging whether a suspect had a corrupt intent to obstruct justice, a reasonable prosecutor would look at the potential gain to the defendant by engaging in the questionable behavior. In most cases, if the target didn’t commit an underlying offense, he would have no reason to hinder the investigation.
But that is not true in Trump’s case. Throughout his election campaign and long after, Trump denied that Russia was responsible for the massive interference in our election that Mueller has now concluded occurred. Trump made these denials “despite,” to quote Barr, “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” Aside from any crimes Trump or his campaign committed by being in cahoots with the Russians, there are other clear gains to Trump in hindering the investigation. The most obvious is that the Russian interference, which both Barr and Mueller say the Trump campaign knew about, calls the legitimacy of the 2016 election into question.
With our focus on whether the president is going to jail, we have run past a point that is now undeniable: Donald J. Trump was elected president of the United States after a sustained series of crimes by the Russian government aimed at boosting his chances of winning. Because of the political damage to the president that Russia’s criminal interference posed, he had an obvious reason to terminate the investigation. In other words, he had something to hide, and the Mueller inquiry seems to have concluded that there was plenty of evidence that he hid it.
To argue that no underlying crime means no obstruction is therefore nonsense. That is fallacious reasoning and it impugns Barr’s integrity and his reputation as a lawyer. Worse, it represents a troubling effort to paper over the acknowledged evidence that Mr. Trump committed a crime in public view.
