Vail Law: What, exactly, is obstruction of justice? (column)
I have been writing this column for 23 years. For several years, I penned the column twice a week. For most of 20 years, it has run weekly. In the early years, I wrote about wills, juries, legal procedures — mostly meat-and-potatoes stuff.
Occasionally, I would range a little farther afield. I wrote one column on the law of breasts that dealt mainly with the right of mothers to breast-feed in public. I have written about the Constitution, legal tactics and common-sense matters such as mediation. I have mused, professed but mostly sought to educate.
Never in those early years did I think I would take my metaphorical pen to paper about the “birther movement,” impeachment, treason, presidential pardons or … obstruction of justice set within the tableau of the presidency. But whether you’re for the president, or spittin’ mad against him, most of us will agree these are not usual times.
It is said an ancient Chaldean curse goes like this: May you live in interesting times.
Which, in a roundabout way, brings us to obstruction of justice.
The “what exactly is it?” part in just a moment. But why it’s on my mind — and many other minds these days — is the apparent hot breath of Special Counsel Robert Mueller chuffing fire down the president’s neck. With the recent collaring of President Donald Trump adviser and pal, Roger Stone, Trump lawyer and fixer, Michael Cohen, backing away from singing before a Senate subcommittee proclaiming that the president and his current lawyer Rudy Giuliani have threatened him, and God knows what other shoe is about to drop, it probably makes some sense to hone the vocabulary that may soon be on nearly everybody’s lips.
What, then, is obstruction of justice? And why in the context of this presidency may it prove relevant?
Obstruction of justice is the crime or act of willfully interfering with the process of justice and law especially by influencing, threatening, harming or impeding a witness, potential witness, juror or judicial or legal officer or by furnishing false information, or otherwise impeding an investigation or legal process. Stated more simply, it is the act of trying to derail the truth and its pursuit by the exercise of influence or the stink of threat.
One of the articles of impeachment approved by the House Judiciary Committee against President Richard Nixon alleged that he tried to obstruct the Watergate investigation and to try and cover-up other unlawful activities. Of course, Nixon gave up the White House and fled to San Clemente, California, before the wolves of impeachment could sharpen their teeth.
Let’s put that on hold for a second and raise another interesting point. The Constitution defines impeachment at the federal level and limits impeachment to “The president, vice president and all civil officers of the United States,” who may be impeached and removed only for ‘treason, bribery or other high crimes and misdemeanors.’” Treason and bribery seem pretty straightforward but what of “high crimes and misdemeanors?” Well, that may be another thing entirely.
Historically, a “high crime” was one committed against the monarch. In a democracy — monarchs having been banished to the dust bin — a “high crime” is one committed against the people. A high crime is an offense against the “we” in “we the people.” What then of a “misdemeanor”? While it has lost something in translation — in today’s legal vocabulary, it means a minor crime — in the lexicon familiar to the framers, it meant something more akin to a breach of public trust.
During the Andrew Johnson, Richard Nixon and Bill Clinton impeachment adventures, there were those who argued that to be impeached, a president did not necessarily need to breach a criminal statute at all; in short, a “crime” as such was not constitutionally required. Instead, all that was essential was a betrayal by the president; even lying about things of substance might suffice. Certainly, however, few would argue that if the president did go so far afield as to commit a crime, then impeachment should reasonably lie. Particularly if the crime involved putting the president’s own interests ahead of the peoples’ or abusing the office to cover up his dirty tracks.
Do the president’s Twitter attacks against Michael Cohen — insinuating harm against his family — amount to obstruction? Did his canning of James Comey from the FBI directorship add up to obstruction? Did his laying into to former Attorney General Jeff Sessions add to the presidential pile-on? Perhaps. What these and other acts certainly did do is add heft to one school of constitutional thought that professes that for a president to be impeached, his wrongs much accrete to a consistent course of doing wrong, rather than committing a single bone-headed oops.
Obstruction? We will see.
Carry an umbrella. A sturdy one. It seems like other shoes may fall soon.
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.
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