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Opinion

Claims that Trump or His Chief of Staff Committed ‘Obstruction of Justice’ Are Patently Absurd

Indict Reince Priebus? Impeach President Trump? If one needs any further proof high social status does not correlate to cognitive capacity, especially as applied to law and politics in the age of Trump, look no further than Harvard Law Professor Laurence Tribe. In his latest rantings, Tribe, and some other liberal lawyers, suggested Trump Chief of Staff Reince Priebus could be criminally prosecuted for “obstruction of justice” due to media reports that Priebus asked FBI agents to talk to reporters to rebut allegations of collusive Trump/Russia ties. For many reasons, this allegation against Priebus is patently absurd. Priebus committed no crime in trying to correct misleading news stories, stories based often on illicit leaks.

Over the past week, various media outlets implied Trump’s campaign had collusive ties to Russia, though these allegations were more vague innuendo than documented fact. Some of the reports suggested their source derived from an “investigation” by FBI agents, despite the manifest lack of logic such a source suggests — after all, even if someone, somewhere had “ties” to Russia, that is not a crime, hence any “investigation” would have had to be prior and collateral, not a present, immediate investigation into Trump himself. It is very notable that no report stated any kind of criminal investigation targeting Trump, an implicit admission there is none, especially in our leak-happy investigative agency world at the moment.

In response to these Russia-made Trump-rich stories, Priebus requested the FBI agents talk to reporters and explain there are no Trump/Russia ties of the kind some outlets report. (This “issue” derives in part from a particularly popular-on-the-left, fake-news meme about Trump, a meme that confuses and conflates Russian citizens buying Trump condos into Russian banks replacing Deutsche Bank as Trump’s bank, mirroring the Robert Reich-repeated fake-news during the campaign that confused and conflated Trump’s father’s estate in 2001 being passed on, en toto, magically to Trump in 1970, such that liberals falsely claimed Trump “inherited $200M” in 1970.) As Deutsche Bank recently reported after a German requested audit, Trump had no ties to Russia, which they vetted as part of their due diligence of high profile customers they lent to. Of course, the American media was mostly silent on this report busting the fake-news meme.

What triggered Tribe in this age of college snowflakes was when CNN reported the conversations between Priebus and the FBI — one of the many, many leaks from the collective intelligence services since Trump’s election. (Unsurprisingly, no liberal lawyers expressed concern over this constant leak campaign, often illicit attempts to subvert the results of the election, which ironically is what liberals complain about related to Russia). Reacting to this news, liberal lawyers like Professor Tribe rushed to compare it to Watergate (because, after all, when comparing immigration policy to the holocaust, a President to Hitler, and Trump voters to Nazis, why not use every other historical hyperbole in the book). Tribe took it a step further, as did other liberal lawyers, and claimed Reince Priebus may have committed the federal crime of obstruction of justice. In reading that, most of the competent criminal defense lawyers reminded themselves to never hire Tribe to write an appeals brief on this area of criminal law.

By law, Reince committed no crime of any kind. Obstruction of justice requires using a knowingly corrupt means to influence an ongoing proceeding. That is why Arthur Andersen— going so far as to shred documents on the eve of a possible subpoena — could not be charged with a crime. That is why a federal judge named Aguilar ( (who tried to lie to FBI agents) could not be charged with a crime. Due to the grave dangers an overly broad obstruction statute could have — converting non-obescience with the government into a criminal act — the Supreme Court restricted its permitted scope more than a half-dozen times the last half-century, with the decision in Arthur Andersen a unanimous decision: there must be a nexus between a corrupt act and a known, pending proceeding.

Of equal note, the act must be a corrupt act, not an innocent one. Corrupt influence is offering cash, threatening violence, perjuring oneself, and the like. It is, as other scholars have noted, a form of “materiality” common to false statement, false return, and perjury charges: it must be capable of causing the investigators to not perform their investigative tasks. In the context of criminal investigations, that requires “willfully” acting “by means of bribery” to “obstruct, delay or prevent the communication of information.” See 18 USC 1510. That is a tough tripartite test: willful criminal intent; means of bribery; and obstruction of communication of information. Asking the FBI to talk to reporters about their prior findings cannot be labeled “willful bribery to obstruct the communication of information”; to the contrary, such a request is neither criminally willful, bribery, nor means to obstruct communication.

Asking FBI agents to share the communication of information with the public cannot be an allegation of an attempt to obstruct the communication of information. Asking investigators to honestly disclose prior findings collateral to a prior case is doing no more than Comey already did when he discussed the Clinton email case in clearing Clinton in the summer of 2016.  (Where do you think Reince got the idea?) Indeed, lawyers ask for public clearance whenever both sides know the facts clear their client and whenever false information about the case has been relayed to the public; this is common-place, not a crime. While the FBI often prefers to let linger the cloud of guilt over any person merely collateral to any inquiry, even after the FBI clears them and even when the person is not even the subject of any inquiry, there is no law that compels such silence, especially where such silence pardons prior slander, and prejudices presidential power, as here.

Why did liberals complain so fast? Maybe to terrorize FBI agents and others from coming forward and disclosing just how fake-news the false bugaboo of Russia really is for the new Red Scare, Russia-phobia left? It would appear the only party “obstructing justice” (in the moral, not legal, sense) would be the growingly inane rants of liberals like Professor Tribe himself. No need to indict them, though; their own statements already indict and impugn their reputations well enough.

Robert Barnes is a California-based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law

 

This is an opinion piece. The views expressed in this article are those of just the author.

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