A version of this report first appeared in May.
While President Donald Trump continues to dismiss Special Counsel Robert Mueller’s investigation as a “WITCH HUNT,” new questions were raised this week about whether Mueller’s probe will specifically drill down on whether Trump has obstructed justice.
A source tells CNN that investigators will soon speak with two senior intelligence officials who were allegedly asked to do Trump’s bidding and publicly deny any evidence of collusion between his presidential campaign and Russia — much like fired FBI Director James Comey claims the President asked him to “let go” of the investigation into former national security adviser Michael Flynn.
Law enforcement sources told CNN that Mueller is gathering information and considering whether there is sufficient evidence to launch a full-scale investigation into possible obstruction.
Here’s a look at the legal definition of the term “obstruction of justice,” and its potential legal ramifications for Trump.
What is the crime of obstruction of justice?
Obstruction of justice is a federal offense that covers any attempt by someone to corruptly “influence, obstruct, or impede” the “due administration of justice.”
“The key question here is whether the President acted with corrupt intent and, to determine what his intent was, we have to look at all the facts and circumstances surrounding the case,” explained former federal prosecutor Renato Mariotti, now a partner at Thompson Coburn.
Why would Mueller look into it?
Mueller’s mandate includes obstruction because he has been ordered not only to investigate any potential links between Trump campaign associates and the Russian government.
It also includes “any matters that arose or may arise directly from the investigation,” as well “any other matters” under the special counsel regulations, which include “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.”
Where’s the evidence of obstruction?
Many have focused on Comey’s claim that Trump asked him to drop the Flynn investigation, but some legal experts say that misses the larger point: the President fired Comey after he refused.
“I think the key is that the most significant step Trump appears to have taken is not his specific discussions with Comey, but his decision to fire Comey entirely because of his dissatisfaction with the shape and progress of the Russia investigation,” explained Steve Vladeck, CNN legal analyst and professor of law at the University of Texas School of Law. “On Flynn, it devolves into a fight over what Trump intended and what Comey understood him to intend. Contrast that with firing Comey, where there’s nowhere near the same mess about why he did it.”
“Obstruction of justice is not a black-and-white offense, so reasonable minds may well disagree about whether asking Comey to go easy on Flynn rises to the level of what federal law prohibits,” Vladeck added.
“But whether the President’s conduct is or is not within the letter of the law is irrelevant; there’s a really good reason why, for generations, presidents from across the ideological spectrum have respected the principle of not interfering in federal criminal investigations. That President Trump seems wholly indifferent to this principle, or the potentially devastating consequences of its demise, is the real scandal here.”
But Andrew McCarthy, a former federal prosecutor who writes for the conservative National Review, said it’s premature to judge whether what has been reported rises to the level of obstruction of justice.
“For example, if the President said to Comey, ‘Listen, I’m not telling you what to do, do what you think is right, but I really hope you can let this go on Flynn because I think he’s a great guy,’ there’s a lot of people who think that would be an inappropriate statement. There’s a difference between inappropriate and criminal,” McCarthy said.
And Ken Starr, the independent prosecutor who spent years investigating President Bill Clinton’s White House, said Thursday there is no viable case for obstruction charges against Trump based on the evidence publicly available so far.
“It’s too soon too tell,” Starr told CNN’s Alisyn Camerota on “New Day.” “From what I have seen, no.”
Can a sitting president even be indicted?
Even if Mueller found evidence of obstruction, legal experts point to two opinions written by the Justice Department’s Office of Legal Counsel (OLC) in 1973 and 2000, both concluding that indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.
Here’s the conclusion from the 2000 memo written by then-assistant Attorney General Randolph D. Moss:
“Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
But others point out that the Supreme Court has never directly addressed the issue.
“The question of whether criminal indictment can precede impeachment has never been addressed by a court — it’s an open question,” said William Yeomans, a 26-year veteran of the Justice Department and fellow in Law and Government at American University Law School.
“The OLC makes law for the executive branch,” Yeomans added, but “their opinions are not binding anywhere else.”
So what about impeachment?
Article II of the Constitution provides for removal of the President from office “on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”
Yeomans, in a recent op-ed for The Hill, wrote that obstruction is a well-established ground for impeachment and charges of obstruction of justice have been a “staple” of the last two substantial attempts to impeach a president.
And after the President fired Comey, Harvard Law School’s Larry Tribe told Slate: “In my view, we have clearly passed that point, both as a technical matter” under law, “and, much more importantly, as a matter of what might be called the ‘common law’ of presidential impeachment, as established principally by the House impeachment and Senate trial of Bill Clinton and by the articles of impeachment of Richard Nixon.”