Obstruct justice?

Did the president obstruct justice? I asked 12 legal experts

Why the latest news about the Trump Tower meeting strengthens the obstruction case against Trump.

By Sean Illing

Michael Cohen is willing to tell special counsel Robert Mueller that President Trump approved of a 2016 Trump Tower meeting in which Russians offered “dirt” on Hillary Clinton, sources told CNN on Thursday.

Cohen is not the most credible person in the world, so we’ll have to wait and see if his account is corroborated. But if Cohen’s story turns out to be true, it will likely strengthen the obstruction case that special counsel Robert Mueller is building against Trump. And that case was already quite strong.

Last July, the Washington Post published a report claiming that President Trump instructed his son Donald Trump Jr. to release a misleading statement about the Trump Tower meeting. According to that report, President Trump “personally dictated” a response that intentionally omitted key facts about the meeting — namely that it was set up to get dirt on Hillary Clinton and, as Donald Jr.’s email thread demonstrated, that the information was “part of Russia and its government’s support for Mr. Trump.”

After the report was released, I reached out to 12 law professors and asked them about the potential legal implications. The overwhelming consensus was that if Trump did dictate false statements about his son’s meeting in order to deceive the public and throw off investigators, it would add to a growing mountain of evidence that points to a broader cover-up.

Their full responses, lightly edited for clarity and style, are below.

Asha Rangappa, associate dean, Yale Law School

Ordering subordinates to lie in an ongoing federal investigation can indeed be grounds for obstruction of justice, and an agreement to go along with such a policy could be a conspiracy to obstruct or defraud the United States. However, in my experience, an FBI agent’s best friend in these circumstances is 18 USC 1001, which makes it a crime — even if you are not under oath — to knowingly misrepresent a material fact in any matter within the jurisdiction of the government of the United States.

False statements and obstruction of justice can often go hand in hand, but from a prosecutor’s point of view it’s easier to prove false statements because you only need to show that the person acted “knowingly and willfully,” rather than “corruptly,” which is the intent requirement for obstruction (and harder to prove). Also, it’s pretty easy to catch someone in a lie. Usually, all the FBI needs to do is simply show up (often unexpectedly), and start asking questions, and sooner or later the subject — particularly one who is, say, trying to protect their boss — will dig themselves into a hole.

What the president has done in allegedly dictating a false statement about his son’s meeting with the Russians is to expose everyone who was present to questioning by Mueller’s team about what they saw and heard during that discussion. If they lie and get caught, they’ll be looking at jail time: Each false statement carries a penalty of up to five years in prison, and those can add up quickly.

At that point, Mueller will have the leverage to offer immunity from prosecution if they provide information on other topics or individuals of interest to him in the Russia investigation. In short, a “policy of dishonesty” within the White House would be an investigative jackpot for Mueller and the cases he is building, and if there is such a policy, the latest news gives him yet another chance to exploit it.

Joshua Dressler, law professor, Ohio State University

Assuming the report proves accurate — that is, that the president dictated the original explanation, one that proved to be inaccurate or at least misleading — the question becomes whether he was aware that it was inaccurate. Did he know about the trail of emails demonstrating that the purpose for the meeting really was to get “dirt” on Clinton? It is hard to believe he was unaware of this. And the fact that he chose to dictate the statement rather than have his son be transparent in reporting the incident suggests he knew what he was doing.

Based on that assumption, I definitely consider this another basis for the claim that the president was seeking to obstruct the investigation. The report most certainly justifies, again, an investigation of the president and not merely his son, son-in-law, and present and former members of his campaign and administration.

Susan Low Bloch, law professor, Georgetown University

Giving a statement that misleads the public about what the meeting was about suggests that those making the statement are trying to cover up the true purpose of the meeting — which we now know from Trump Jr.'s emails was to get dirt on Hillary from the Russians in order to help Trump win the election.

But we don't know what the president knew when he drafted the misleading statement for his son. Specifically, we don't know if Junior was misleading his father or whether his father was trying to mislead us, the public. If the president was deliberately trying to mislead us and trying to hide the fact that he knew the Russians were aiming to help him win the election, that adds to the evidence that Mueller is collecting concerning Trump collusion with the Russians.

We know that Mueller is investigating the June 2016 meeting, and Trump's helping to draft a misleading statement for his son is evidence that Mueller will undoubtedly find informative. It adds to the suggestion that there is a deliberate intent to mislead and cover up both the meeting and Russian collaboration generally.

Jed Shugerman, law professor, Fordham University

The clearest case for Trump's obstruction of justice was firing [FBI Director James] Comey, because Trump himself admitted as much (to Lester Holt on NBC, to [Russian Foreign Minister Sergei] Lavrov and [now-former Russian Ambassador to the US Sergey] Kislyak in the Oval Office). There is nothing illegal about lying in itself, but this latest news adds to the growing mountain of evidence of a cover-up and "corrupt" intent required by the obstruction statute.

But this news also raises a question: If President Trump was drafting responses — and changing his son's own response — about what happened in the meeting, doesn't that at least suggest he knew much more about the meeting than he had suggested? "Collusion" is not a crime, but conspiracy to hack computers is a felony. See the 1986 Computer Fraud and Abuse Act.

Christopher Slobogin, law professor, Vanderbilt University

Probably the most relevant federal statute is the false statement statute, which prohibits knowingly making a false statement about a matter material to an investigation by a federal agency. The prosecution would have to show Trump’s statement was false, that he knew it was false or chose not to learn about its falsity and declared it with the intent to deceive.

The government would also have to show the statement was “material” to a federal investigation — that is, that it might influence such an investigation, although it need not show investigators were actually influenced, nor that Trump knew it might be material to their investigation. And conspiracy to obstruct occurs if Trump agreed with his son to make such false statements.

So the key question is: Did Trump or his son intend to hide the fact that it involved a meeting about the subject matter of Mueller’s investigation by making a statement they knew to be false? The statement says the meeting was “primarily” about adoption, and does not specifically state it had nothing to do with gleaning confidential information about the Democrats from people associated with the Russian government.

Jens David Ohlin, law professor, Cornell University

By itself it's not a crime to lie to the public, though in the past it's something that's come with some political risk. Whether that's still the case is uncertain. Legally, the president's attempt to dictate his son's response may be probative (meaning it constitutes evidence) as to motive in an obstruction of justice case developed by Mueller.

In other words, if an obstruction of justice charge is based on the theory that Trump wanted to shut down the Russia investigation, and to do so corruptly, then the recent revelation might help show — if there was any doubt — that Trump wants and needs to downplay his campaign's involvement with Russia. It's one piece of the troubling mosaic that Mueller is likely assembling.

Samuel Gross, law professor, University of Michigan

When we speculate about investigations from afar, we often speak of “smoking guns,” but most trials don’t involve them. Legal claims are usually proven by compiling many incidents and details that together reveal a clear pattern. As [University of Texas Law School] Dean Charles McCormick wrote in 1954, “A brick is not a wall.” On its own, this new item may not prove much, but it’s another brick that could someday be part of a wall that proves obstruction of justice.

Stephen Schulhofer, law professor, New York University

Lying to the public or encouraging others to lie to the public is not in itself a crime. But if President Trump dictated or participated in drafting Trump Jr.’s misleading account of the June meeting (that qualification is important; news reports to that effect are attributed to anonymous sources), those actions might become relevant in a criminal prosecution.

It would be crucial to show, first, whether the president knew the account to be disseminated publicly was false. The published news reports do not (yet) claim that he did. If the president knowingly helped disseminate a false or misleading account of the June meeting, those actions still would not, in themselves, constitute obstruction of justice, a charge that requires proof of intent. Such actions, however, could become very relevant toward proving intent to obstruct by interfering with Mueller’s investigation.

The misleading public account could have been intended to obstruct by diverting investigative attention away from that meeting, though you would have to be very naive to think that Mueller’s investigators could be so easily diverted. More likely, such actions could be evidence of a strategy to help participants in the June meeting coordinate their stories, so that they don’t contradict each other when called to testify under oath or even when interviewed by the FBI, because lying to the FBI is a crime in this situation even when not under oath.

Lastly, the news reports suggest not only the possibility of obstruction on the president’s part but the distinct crime of conspiracy to obstruct on the part of the group that discussed and finalized the misleading public account. If the necessary knowledge and intent are present, those who participated could be guilty of conspiracy to obstruct, and then the president himself could be guilty of additional crimes such as perjury or lying to the FBI committed by his co-conspirators in furtherance of the cover-up conspiracy.

Victoria Nourse, law professor, Georgetown University

First, in the court of public opinion (where it really matters): Trump can no longer do what [President Ronald] Reagan did and deny personal knowledge. The public basically “pardoned” Reagan even if his associates were indicted. Will they pardon someone who appears to be personally cultivating a pattern of deception? Doubtful, but that’s a political judgment.

Second, in a court of law: Conspiracy to commit murder does not require murder any more than conspiracy to obstruct justice requires actual obstruction of justice. We don’t know whether there is an agreement here between Trump, his son, and his son-in-law to obstruct justice (the investigation of Russia allegations), but Trump said he fired Comey for that reason, and now he seems to be working with others to deceive the public about meetings with the Russians. If I were a prosecutor, I would sure think that was evidence of obstruction and an intent to obstruct.

Keith Whittington, politics professor, Princeton University

Although issuing misleading or false statements to the media relating to the Russia probe seems like a stretch for a prosecution of a president for obstruction of justice, it certainly poses difficulties for the White House. It gives further evidence that the president has committed himself to a Clintonian strategy of impeding and undermining the investigation as much as possible.

To the extent that the president seems to be personally involved in developing strategies to mislead the public and members of Congress (at best) on how his presidential campaign interacted with representatives of the Russian government, this should hardly be reassuring to legislators assessing his level of cooperation with the Mueller probe.

Miriam Baer, law professor, Brooklyn Law School

The incident provides yet another data point on the president’s state of mind. That the president would dictate his son’s statement to the press — and do so in a misleading and evasive manner — demonstrates his interest in and attempt to control the situation.

The president can certainly offer his own reasons for why he did so, but the conduct provides additional evidence of a culpable state of mind. It isn’t the only evidence, and it isn’t even the most important piece of evidence, but it certainly is relevant, and it suggests additional avenues of inquiry.

Diane Marie Amann, law professor, University of Georgia

Whether an elected official’s lies — uttered himself, or by another at his direction — amount to the federal crime of obstruction of justice hinges on intent. If the liar’s purpose is to hinder a criminal investigation, then, yes, lies may violate the law. That purpose may be proved not only by the official’s own admission but also, circumstantially, by treating the lies as one link in a chain of evidence of illegal intent. In a given case, other links might include firing a top law enforcement officer, or refusing to hand over documents sought by investigators. But there may be a catch: It is not clear whether Mueller’s investigation is a “proceeding” as required by 18 USC § 1505, a key obstruction statute.

Acts that do not meet a precise statutory definition still may place an elected official in jeopardy. The Constitution allows impeachment for “high crimes and misdemeanors,” a phrase understood to encompass more than felonies defined by Congress. Obstruction thus was alleged without mention of statutes in the articles of impeachment that the House approved against President Clinton (whom the Senate chose not to convict).

Such proceedings, as Yale Law Professor Charles Black indicated in his 1974 Impeachment: A Handbook, would focus on how lies affect the integrity of the government; that is, the integrity of the laws the president has sworn to faithfully execute. The inquiry might have the feel of policy, yet it is authorized by the highest law in the land. In Black’s words: “Impeachment is a matter of law, foursquare and all the way, and lawyers must run the process, as surely as doctors must run the operating room.”