Vail Law column: What is obstruction of justice?
May 30, 2017
The latest from Washington, D.C., is that associates of former FBI Director James Comey claim he made a contemporaneous record of a private February conversation with the president whereby Mr. Donald Trump pressured the director to drop the Bureau's investigation into former National Security Advisor Michael Flynn's alleged connections with the Russians.
"I hope you can let this go," the president is reported to have said, "let Flynn go."
This, along with the firing of Comey when it appeared he would not play ball with the president, has led whispers of the "I" word to become veritable shouts … at least from some quarters. From the House floor, on May 17, Rep. Al Green, D-Texas, became the first congressman to call for the president's impeachment.
Impeachment means only that the House of Representatives would bring charges (articles of impeachment) against the president. It does not mean that the president would necessarily be found guilty. Similar to a criminal indictment, culpability or guilt must still be proven.
For example, in December 1998, former President Bill Clinton had to answer to articles of impeachment but survived the ordeal to remain in office. Two charges (or articles) were brought against him, the first for perjury and the second for alleged obstruction of justice.
When articles of impeachment were drawn up against former president Richard Nixon, he faced three charges: abuse of power, contempt of Congress and obstruction of justice. Seeing the writing on the wall — that he would be found guilty and removed from office — the president instead resigned.
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In 1868, the U.S. House of Representatives drew up 11 articles of impeachment detailing Andrew Johnson's "high crimes and misdemeanors" in accordance with Article Two of the U.S. Constitution. Unlike Nixon and Clinton, the charges against Johnson did not include obstruction. Like Clinton, however, Johnson survived to complete what is regarded as his failed presidency. Many rank Johnson among the worst that have served in that office.
So what, then, constitutes obstruction of justice?
"Obstruction" means getting in the way, interfering or blocking. "Justice" means prosecution or administration of the laws. To obstruct justice, one throws up a roadblock or roadblocks to the maintenance or administration of lawful process.
The legal requirements to support a charge of obstruction of justice are more complex.
But a quick detour first.
What is required to convict one of the criminal charge of obstruction of justice ain't necessarily the same as what may be required to impeach. It is worth attention, too, that a sitting president cannot — or at the least, would not — be charged with the crime of obstruction; if he were to be charged with the crime — given the applicability of presidential immunity — he would first have to be impeached, then removed from office and then potentially charged with the crime.
Thirdly, it is wise to keep the 25th Amendment in sight. That amendment provides, in Section 4, that a president may be removed from office if he is "unable to discharge the powers and duties of his office" so long as "the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide … their written declaration" to that effect. Lastly, there are "elements" to consider. Elements in this case are the components that make up the alleged offense.
In order to make obstruction a crime, one must act to impede official investigations. While some examples of obstruction are specific — such as killing a witness or destroying evidence — the law also includes broad, catchall prohibitions.
We are a long, long way from impeachment, if that were to occur at all. And we are a much longer way to any potential removal of the president from office and into the nether reaches of the ionosphere before the president would be charged and convicted of a crime.
More than 100 days into the Trump Administration, we can all agree this is very disturbing and unsettling to our democracy.
Will Donald Trump be impeached? He has surprised us before. It would not be the first time a president was brought down owing to alleged obstruction. Trump is nothing if not a showman. Stay tuned — this could be yuuuge.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.