Dear President Trump: ‘Obstruction of justice’ doesn’t mean what you think it means

The POTUS is tweeting himself into more problems.

President Donald Trump attends a Cabinet meeting, Monday, June 12, 2017, in the Cabinet Room of the White House in Washington. CREDIT: AP Photo/Andrew Harnik
President Donald Trump attends a Cabinet meeting, Monday, June 12, 2017, in the Cabinet Room of the White House in Washington. CREDIT: AP Photo/Andrew Harnik

On Wednesday, The Washington Post reported that the special investigation into the Trump campaign and the Russian hacking of the 2016 election now also encompasses whether President Donald Trump might be guilty of obstruction of justice.

That investigation, the report says, likely stems from Trump firing FBI director James Comey, who was in charge of the investigation into whether the Trump campaign colluded with Russia. Trump told NBC’s Lester Holt in a televised interview that he had the Russia investigation in mind when he decided to fire Comey.

“And in fact when I decided to just do it, I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won,’” Trump said.

Those disclosures — paired with Comey’s testimony under oath before the Senate last week that Trump had asked him for loyalty and tried, in Comey’s estimation, to cultivate an inappropriate relationship — raise the question of whether the president was attempting to influence an ongoing investigation, which could constitute obstruction of justice.

Immediately after the report, Trump lashed out on Twitter — calling the investigation a “WITCH HUNT” by “some very bad and conflicted people.”

He also insinuated that the obstruction charge was meaningless, because the original crime under investigation — that the Trump campaign colluded with the Russian election hacking — hadn’t been proven.

Notably, Trump does not spend time arguing that he did not attempt to obstruct the investigation, suggesting he assumes that is impossible if there is no underlying crime.

His assumption roughly echoes the RNC talking points issued about the Washington Post report, which allege that the obstruction charge is just a cover for the lack of evidence of collusion.

Both of these, however, glide over one fundamental fact: It’s not necessary for the underlying crime to have been committed by the person — or even to exist — for that person to commit obstruction of justice.

In this case, if Trump intended to interfere with the investigation into the Russian collusion, even if ultimately the special counselor concludes no Russian collusion occurred, Trump could still be found guilty of attempted interference of an ongoing investigation.

One way we know that? It’s happened before.

Obstruction of justice is a particularly fraught charge for presidents, because it’s been the charge most often levied in impeachment proceedings. Most recently, it was one of the two charges cited in the impeachment of President Bill Clinton.

Clinton was impeached by the House for obstruction of justice and perjury for lying under oath about his sexual relations with White House intern Monica Lewinksi.

Those charges, however, were completely beside the subject of the original investigation — which was whether the Clintons had broken the law in a land deal they’d made in Arkansas, known as Whitewater.

Three separate investigations failed to find evidence of such a crime on the Clinton’s part. Nonetheless, as part of the wide-ranging investigation, Bill Clinton testified about allegations of sexual harassment. And as a result of his answers under oath, special prosecutor Kenneth Starr concluded that Clinton had obstructed justice — even though there was no evidence of Clinton having committed the original crime.

“If you lie under oath, if you intimidate a witness, if you seek otherwise to obstruct the process of justice, it doesn’t matter who wins and who loses in the civil case. What matters, from the criminal law’s perspective, is were crimes committed?” Starr said in a news conference at the time, explaining why his findings in the obstruction of justice probe wouldn’t be affected by the findings on the original matter.

Starr’s findings came after a wide-ranging investigation into the Clinton’s finances, personal relations, and most of their staff, at a $70 million taxpayer price tag. The investigation, and subsequent impeachment proceedings were championed by then-Speaker of the House Newt Gingrich — who is now one of Trump’s staunchest defenders.

Gingrich, in 1998, accused Clinton of “undermining the law in the most systematic obstruction of justice cover-up we’ve ever seen in American history,” and insisted repeatedly that the public had a “right to know” whether Clinton had broken the law in his testimony about Monica Lewinsky.

On Thursday, however, Gingrich tweeted that the shift of Mueller’s investigation to include obstruction of justice was an example of “the deep state” trying to undermine the Trump presidency.

Gingrich, in 1998, also repeatedly attacked Clinton for public criticism of Starr’s investigation.

“I think it is disgraceful that official representatives of the executive branch are undermining a legitimate, legal investigation of the Department of Justice,” he said in March 1998.

“I think the president should bring all of his staff into a room and say, ‘No more spinning. No more fun and games. No more vicious attacks. Why don’t we slow down and tell the truth and let the American people know what happened and let the chips fall where they may,” he said in May 1998.

Now, however, Gingrich is one of Trump’s top attack dogs against Mueller — accusing him of being partisan, conflicted, and the “anti-Trump special counsel.