Let’s not beat around the bush. This interpretation of several federal criminal statutes is simply wrong:
It would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!
— Donald J. Trump (@realDonaldTrump) May 1, 2018
Trump appears to think that neither he nor any of his associates can be charged and convicted of an obstruction crime by Special Counsel Robert Mueller if Mueller isn’t also investigating some other crime that was actually committed (a consistent theme of Trump’s Twitter oeuvre is that Mueller’s investigation is a “Witch Hunt” investigating imagined wrongs).
But Trump’s latest tweet reveals that he has a very poor understanding of how the criminal law works, or what sort of actions constitute obstruction of justice. There is no one statute banning a singular crime of “obstruction,” rather, federal law prohibits a wide range of activities — from threatening or harassing witnesses, to bribing jurors, federal officials, or witnesses, to lying to federal investigators or under oath, to kidnapping the family members of a federal judge — all of which can be lumped under the broad heading “obstruction of justice.”
As a general rule, violating one of these statutes is a stand-alone crime. It is illegal, for example, for a witness at a federal criminal trial to knowingly make “any false material declaration” while under oath. Someone charged with perjury under this statute may still be convicted even if the defendant in the original trial was exonerated.
The same is true about federal laws banning witness tampering, bribery, falsification of records, false statements to investigators, and numerous other statutes governing various forms of obstruction of justice.
Imagine, for example, that a hypothetical defendant (we’ll call him “Donnie T.”) is wrongly accused of robbing a bank. In this hypothetical, Donnie T. could not have robbed the bank because he was having sex with his mistress at the time of the robbery.
Donnie T. could defend himself by asking his mistress to testify, but he does not want to reveal this tryst to his wife and to the public at large. So, instead of offering a honest defense, Donnie T. bribes an associate (we’ll call the associate “Mikey C.”) to falsely testify that he was having lunch with Donnie T. at the time of the robbery.
Again, Donnie T. did not rob the bank. He is innocent of the crime he was originally charged with. But bribing Mikey C. to offer false testimony in court is still a federal crime. The fact that Donnie T. should not have been charged with bank robbery in the first place does not give him license to use any tactic he wants, legal or illegal, in order to beat the charges against him.
Of course, none of this means that Trump necessarily committed an obstruction crime. It is still possible that Mueller will wrap up his investigation and determine that charges against Trump are not warranted.
But the old Washington adage that “it’s not the crime, it’s the cover up” exists for a reason. Various laws prohibit individuals from taking certain actions that interfere with federal investigations or legal proceedings. And these crimes are no less severe because the investigator might have begun their investigation with a goose chase.