The case of whether Trump obstructed justice is ultimately a political case. This is because, according to a Department of Justice guideline, a sitting President cannot be indicted for any crime. The logic of the guideline is that indicting a sitting President would create a topsy-turvy situation where the chief executive would fall under the jurisdiction of the judicial branch, undermining the separation of powers. This is fine under normal circumstances, under a normal presidency, where the President is not expected to have engaged in criminally prosecutable behavior. But with Trump, the world gets anything but normal. Which is why some have called for a review of the DOJ guideline.
But, more fundamentally, what is obstruction of justice? Firstly, according to Trump’s former personal attorney, John Dowd, obstruction of justice is a charge that cannot be applied to a sitting President because of the DOJ guideline. This creates a kind of catch-22, where a President can obstruct justice but cannot be charged with obstruction of justice because they are the President, which allows them to obstruct justice with impunity. Obstruction of justice is itself defined as “…an act that ‘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 administration of justice.'” So, by his Tweets (“threatening communication”), Trump has committed the crime of obstruction of justice through his “endeavors to influence” the investigation of the Special Counsel, Robert Mueller.
This much is clear, Trump has obstructed justice every time he has claimed the Mueller investigation is a witch hunt and every time Trump has cast doubt on the legality of the investigation via his Tweets. And every time that Trump has upped the ante, from firing James Comey to coordinating with Paul Manafort, Trump has only dug himself deeper into the hole of obstruction of justice. With the Tweets alone, the Special Counsel investigation only needs to prove Trump’s intention to throw investigators off their course. This alone is obstruction of justice. However, there is a more substantial and material case for obstruction of justice.
The compelling case made by Vox, is that the coordination between Paul Manafort’s defense attorneys and the White House meets the definition of intention to obstruct justice. According to the article, even as Paul Manafort was supposedly cooperating with investigators, his attorneys were coordinating with the White House to craft a common strategy to defy the findings of the Special Counsel. Through his attempts to aid Manafort and discredit the FBI, Trump attempted to tip the scales of justice in his favor, thereby obstructing justice.
Nonetheless, as the FBI falls under the jurisdiction of the Justice Department, we return to the question of whether the FBI can pursue an indictment, given the 2000 guideline against indicting a sitting President. If Trump were to stop being President tomorrow, there would be nothing preventing the FBI from charging him with obstructing the Mueller investigation. In this way, Trump has bought himself immunity from prosecution very much in the same way in which national laws have protected corrupt politicians such as Silvio Berlusconi and Benjamin Netanyahu.
But Trump is not immune from impeachment, which is the tool given in the Constitution precisely to reject a President that is found guilty of crimes or misdemeanors. Trump is an aberration to the principles of the Constitution and the Constitution spells out the method by which he can be removed from office. How are those found to have obstructed justice punished? Under federal law, obstruction of justice is a felony with a jail term of at most 10 years. Therefore, obstruction of justice constitutes something more than the misdemeanors necessary for impeachment. But impeachment is a political process. The new Democratic majority in the House can certainly push for articles of impeachment, but it is not certain that even if these are drawn, the Republican majority in the Senate will vote to convict. For the Senate to convict, there needs to be a preponderance of evidence so convincing that senators will find themselves in indefensible situations if they fail to convict.
This is where the report of the Special Counsel will fall into place. The preponderance of evidence is what the Mueller investigation will hopefully deliver, and this is where the case against Trump will turn political. If the Mueller findings are released to the public, and if they show that Trump brazenly obstructed justice, then the court of public opinion will pressure Congress to move toward impeachment. This is how the political will of the people will manifest itself through Congress. This is also why Trump has focused so much of his energy convincing his followers that whatever the findings of the Special Counsel, nothing Trump did during the campaign amounted to an impeachable offense. And that anything post the election has been nothing but politics as usual. If the report the Special Counsel provides shows in writing and with verifiable sources that Trump took steps to impede the investigation, that would amount to an impeachable offense and no senator would shy away from convicting Trump. Beyond the firing of James Comey, the cooperation with the Manafort defense team is a clear obstruction of justice.
Turning away from the case for obstruction of justice charges, there is the issue of Trump and his cooperation with foreign entities to sway American voters. Trump and his associates knew that the WikiLeaks information that was supposedly damaging to Hillary Clinton was sourced from a Russian hack. That Putin interfered in the election is the unanimous view of all US intelligence agencies. That the Special Counsel is following this line of reasoning is evident by the FBI indictments against Russian operatives.
Hacking is a far more serious case than obstruction because it is at the root of the most serious crime committed by Trump; when he defrauded the taxpayer-funded Presidential election of 2016. Trump defrauded taxpayers when he used illegal means to get elected. Taxpayers paid for a clean election, not for an election where one side accepted Russian help to win. This is the story the Democratic party needs to tell the American public: that Trump knowingly accepted help from Russian agents in order to beat Hillary Clinton.
This messaging is important. Witness what Trump is doing with the Trump hotel in Washington DC. Before the election, there were those who said that Trump would surely divest himself from the property because it would create such a clear conflict of interest. Those people were wrong. Trump has kept the hotel and to prove how little he cares about appearing to have a conflict of interest, used the hotel to overcharge his own Presidential inaugural committee. Oh yes, and a Saudi government cutout transferred funds directly to Trump by renting out 500 rooms through a scheme designed to look like an outreach program for Veterans. Democrats should not wait for the Mueller investigation to conclude before putting out the message that Trump obstructed justice by coordinating with Paul Manafort’s legal defense team, and that Trump also defrauded the American public in the 2016 election by accepting Russian hacked material.
The federal punishment for computer hacking is a 20 year prison sentence and carries fines of a quarter-million dollars. But the statute of limitations for computer hacking is seven years. If Trump is re-elected, there is the chance that he will outlast the statute of limitations even as the knowing beneficiary of the hacking of the Democratic National Committee computer servers. But if Trump is not re-elected, or if he is impeached (and therefore not immune from prosecution) there is the distinct possibility of Trump facing jail time for obstruction, or for his knowledgeable use of information hacked from Democrats during the 2016 election.
Under either circumstance, the Republican party has bought itself for the 2020 election cycle an unconvicted felon who has obstructed justice and who collaborated with Russians to affect the outcome of the 2016 election.