Recently, David Leonhardt, New York Times associate editorial page editor, listed ten examples of President Trump obstructing justice. There was just one problem with this list– none of the examples were of obstruction of justice.
When discussing obstruction of justice, a critical distinction needs to be made between the legal standard and unethical behavior which is still legal. Both are bad and, I would argue, grounds for impeachment, but Leonhardt is only focusing on obstruction as a legal standard. This is made abundantly clear when Leonhardt twice- once before the list and once after- references legal scholars.
18 U.S. Code § 1512 Section C is made up of multiple elements. This is the only law which might apply to Trump. A person violates it if they:
- “Alters, destroys, mutilates, or conceals a record, document, or other object” or “otherwise obstructs, influences, or impedes”
- Have intent
- The supposed obstruction is against an official proceeding
On the other hand, 18 U.S. Code § 1503 Section A is similarly made of multiple elements but one of overriding importance. It only applies to cases in front of a grand or trial jury.
Finally, 18 U.S. Code § 1519 only applies to the destruction of evidence which no one is accusing Trump of.
The problem with this example is that there was no bite to match the bark. It is not illegal to ask an investigator– or an investigators boss– to do anything. If you were being investigated by the police and you asked the Police Chief to let it go, that is clearly not illegal. Similarly, it would not be illegal for the President to simply ask that and not follow it up with action. Furthermore, even if the President did follow it up with action, it would almost certainly be legal. The constitution vests the power of the executive in the President. Because of this, the President holds power over the entire executive branch– he is a unitary executive. The President has control over the Department of Justice– which the FBI is a part of– and as the executive, he has the power to order an investigation to be begun or ended. Examples one through seven fit into this rebuttal, with the caveat that the President can fire anyone who is not protected by civil service laws as he wants.
Examples eight, nine and ten are a different monster– not because they are legitimate examples but because they are such weak tea. Nowhere in the law is it illegal to make false statements to the public. It is not illegal for the President to say anything under any circumstance. The fact that a short list making the case for legal obstruction devolved for far is, frankly, proof the case for legal obstruction of justice is on thin ice.