Ob­struc­tion case tough for Mueller

Rul­ings in past decades say pres­i­dent pro­tected from crim­i­nal pros­e­cu­tion

The Washington Times Weekly - - Politics - BY AN­DREA NO­BLE, DAN BOY­LAN AND GUY TAY­LOR

Spe­cial coun­sel Robert Mueller could have a tough time mak­ing an ob­struc­tion of justice case stick against Pres­i­dent Trump, ac­cord­ing to le­gal an­a­lysts, who said he will have to over­come a num­ber of “unique hur­dles” — not the least of which is a decades-old Justice Depart­ment rul­ing that a sit­ting pres­i­dent can’t be charged.

An­a­lysts say it will be up to Mr. Mueller to de­cide whether to ac­cept the long­stand­ing opin­ion of the Of­fice of Le­gal Coun­sel, which ruled in 1973 and again in 2000 that a pres­i­dent has im­mu­nity from crim­i­nal pros­e­cu­tion.

It’s also not clear that FBI in­ves­ti­ga­tions count as “pro­ceed­ings” that could be ob­structed un­der one of the le­gal statutes that might be cited in an ob­struc­tion case, ac­cord­ing to a le­gal memo pre­pared last month by the Con­gres­sional Re­search Ser­vice.

“Courts have not reached con­sen­sus on whether an FBI in­ves­ti­ga­tion meets this stan­dard,” the re­port says of 18 U.S.C. 1505, which ap­plies gen­er­ally to ob­struc­tion of ad­min­is­tra­tive pro­ceed­ings.

Mr. Mueller’s of­fice de­clined to com­ment Thurs­day on reports that the spe­cial pros­e­cu­tor’s probe had ex­panded from Rus­sian med­dling in the Novem­ber pres­i­den­tial elec­tion to ques­tions of whether Mr. Trump tried to ob­struct the Rus­sia in­ves­ti­ga­tion.

Sep­a­rately, Sen. Richard Burr, North Carolina Repub­li­can and chair­man of the Se­nate Se­lect Com­mit­tee on In­tel­li­gence, and Sen. Mark R. Warner, the panel’s rank­ing Demo­crat, con­firmed their own in­ves­ti­ga­tion of Rus­sian hack­ing and suspected col­lu­sion would not be look­ing into the ob­struc­tion of justice claim.

“Ob­struc­tion is crim­i­nal — there’s a crim­i­nal as­pect to that,” Mr. Burr told CNN. “It’s never been part of our [in­ves­ti­ga­tion].”

But Rep. Adam B. Schiff of Cal­i­for­nia, the rank­ing Demo­crat on the House Per­ma­nent Se­lect Com­mit­tee on In­tel­li­gence, which also is in­ves­ti­gat­ing the Rus­sian hack­ing case, said he is press­ing to in­quire about ob­struc­tion of justice.

“I think it needs to be part of the in­ves­ti­ga­tion,” Mr. Schiff told Politico on Thurs­day. “Congress has to get to the bot­tom of whether any­body is in­ter­fer­ing or ob­struct­ing any in­ves­ti­ga­tion in any way.”

Sev­eral Repub­li­can law­mak­ers said claims of ob­struc­tion of justice, which got new life when fired FBI Di­rec­tor James B. Comey tes­ti­fied on Capi­tol Hill, are a dis­trac­tion.

“What we re­ally need to be look­ing at is Rus­sian in­ter­fer­ence, their will­ing­ness and de­sire to hack into our sys­tems,” Rep. Mark Mead­ows, North Carolina Repub­li­can and chair­man of the con­ser­va­tive House Free­dom Cau­cus, told The Washington Times.

Mr. Trump, through his Twit­ter ac­count, was again an­grily at­tack­ing leaks of a pos­si­ble ob­struc­tion of justice case. He said he was the vic­tim of a “witch hunt” with­out prece­dent in U.S. history.

The pres­i­dent again called the Rus­sia probe an at­tempt by Democrats to dis­tract from their elec­tion loss and from the scan­dals sur­round­ing Hil­lary Clin­ton’s email server.

“You are wit­ness­ing the sin­gle great­est WITCH HUNT in Amer­i­can po­lit­i­cal history — led by some very bad and con­flicted peo­ple!” Mr. Trump tweeted. It was an ap­par­ent ref­er­ence to reports that Mr. Mueller, a for­mer FBI di­rec­tor, was too close to Mr. Comey and that some of the in­ves­ti­ga­tors he has re­cruited have do­nated to Demo­cratic politi­cians.

Mr. Trump and his de­fend­ers also say the Mueller probe has been a source of dam­ag­ing leaks, in­clud­ing news of the ob­struc­tion of justice in­ves­ti­ga­tion and a Washington Post re­port Thurs­day evening that the spe­cial coun­sel is re­port­edly look­ing into the fi­nances and busi­ness deal­ings of Jared Kush­ner, Mr. Trump’s son-in-law and a top White House ad­viser.

Jamie Go­er­lick, Mr. Kush­ner’s at­tor­ney, said it was not clear what the probe en­tailed but added, “It would be stan­dard prac­tice for the spe­cial coun­sel to ex­am­ine fi­nan­cial records to look for any­thing re­lated to Rus­sia. Mr. Kush­ner pre­vi­ously vol­un­teered to share with Congress what he knows about Rus­sia-re­lated mat­ters. He will do the same if he is con­tacted in con­nec­tion with any other in­quiry.” Mueller’s call

Le­gal an­a­lysts said it will be up to Mr. Mueller, a for­mer FBI di­rec­tor ap­pointed by the deputy at­tor­ney gen­eral to over­see the probe, to in­ter­pret his own bound­aries.

“If Mueller con­cludes that he is bound by the OLC opin­ions or if he con­cludes it’s the right con­clu­sion, then there is a gen­uine is­sue on how far he can press a crim­i­nal in­ves­ti­ga­tion into the pres­i­dent’s own con­duct,” said Philip Allen La­co­vara, a for­mer U.S. deputy so­lic­i­tor gen­eral who served as coun­sel to Water­gate spe­cial pros­e­cu­tors Archibald Cox and Leon Ja­worski.

The Of­fice of Le­gal Coun­sel opin­ions — which con­cluded that “the in­dict­ment or crim­i­nal pros­e­cu­tion of a sit­ting pres­i­dent would im­per­mis­si­bly un­der­mine the ca­pac­ity of the ex­ec­u­tive branch to per­form its con­sti­tu­tion­ally as­signed func­tions” — co­in­cided with probes into the ac­tions of Pres­i­dent Nixon and Pres­i­dent Clin­ton.

Mr. La­co­vara ad­vised the Water­gate spe­cial pros­e­cu­tors han­dling the Nixon in­ves­ti­ga­tion that the pres­i­dent doesn’t have any sort of unique im­mu­nity from the law. Nixon never faced any crim­i­nal pro­ceed­ings be­fore he re­signed in 1974 fac­ing im­peach­ment by the House, and he was par­doned shortly af­ter he left the White House by his suc­ces­sor, Ger­ald Ford.

Whether the Justice Depart­ment’s stance would stand up in court is untested, the Con­gres­sional Re­search Ser­vice re­ported.

“The DOJ opin­ion — is­sued in 1973 and re­it­er­ated in 2000 — shows nonethe­less that an ob­struc­tion of justice pros­e­cu­tion against a sit­ting pres­i­dent, as op­posed to other mem­bers of the ex­ec­u­tive branch, would face unique hur­dles,” the re­port states.

John Car­lin, who was an as­sis­tant at­tor­ney gen­eral for na­tional se­cu­rity in the Obama Justice Depart­ment, doesn’t ex­pect Mr. Mueller to test those un­charted wa­ters.

“Mueller, who has spent nearly his en­tire ca­reer work­ing for the Justice Depart­ment, seems un­likely to con­front the of­fice’s con­clu­sion head-on, given its role as the ex­ec­u­tive branch’s fore­most le­gal author­ity,” Mr. Car­lin wrote in an anal­y­sis pub­lished last week in The Washington Post.

The statute gov­ern­ing the ap­point­ment of a spe­cial coun­sel states that the coun­sel “shall com­ply with the rules, reg­u­la­tions, pro­ce­dures, prac­tices and poli­cies of the Depart­ment of Justice.” But that doesn’t mean the out­side in­ves­ti­ga­tor does ev­ery­thing the same way agents han­dling a Justice Depart­ment in­ves­ti­ga­tion would be re­quired.

For in­stance, crim­i­nal wire­taps sought by the spe­cial coun­sel wouldn’t have to be ap­proved by Justice Depart­ment’s crim­i­nal divi­sion. The spe­cial coun­sel is also ex­pected to seek guid­ance from of­fices within the depart­ment about po­lices and prac­tices ex­cept in “ex­tra­or­di­nary cir­cum­stances,” un­der which do­ing so might be in­ap­pro­pri­ate. In that case, he is to con­sult with Mr. Rosen­stein in­stead.

But con­clud­ing that there is a case for ob­struc­tion of justice will be a tricky en­deavor in and of it­self, said Ken­neth W. Starr, who acted as an in­de­pen­dent coun­sel in­ves­ti­gat­ing Pres­i­dent Clin­ton.

“Ob­struc­tion of justice is re­ally a hard crime to make out,” Mr. Starr told CNN on Thurs­day. “It’s not just that you want the in­ves­ti­ga­tion to go away, that you sug­gested the in­ves­ti­ga­tion goes away. You have to take re­ally af­fir­ma­tive ac­tion.”

Mr. Starr said it was too soon to de­ter­mine whether ob­struc­tion charges could be sub­stan­ti­ated in Mr. Trump’s case. Based on the in­for­ma­tion made pub­lic thus far about Mr. Trump’s in­ter­ac­tions with Mr. Comey, Mr. Starr said he didn’t think there was enough ev­i­dence to bring such charges.

If charges are not filed, there is some ques­tion as to how much Mr. Mueller could choose to make pub­lic about the re­sults of his in­ves­ti­ga­tion.

The spe­cial coun­sel is re­quired to send a con­fi­den­tial re­port to the at­tor­ney gen­eral — in this case to Mr. Rosen­stein — de­tail­ing the de­ci­sion made about whether or not to bring charges. But there is no guar­an­tee that such a re­port would be made pub­lic.

Mr. Car­lin sug­gested that con­gres­sional lead­ers should try in ad­vance to ob­tain as­sur­ances that if Mr. Mueller un­cov­ers po­ten­tial ev­i­dence of crim­i­nal con­duct by Mr. Trump, “that ev­i­dence will be dis­closed in de­tail to Congress once the in­ves­ti­ga­tion is con­cluded.” Mr. La­co­vara had an­other sug­ges­tion. If oth­ers are crim­i­nally charged, then the spe­cial coun­sel’s team could de­tail Mr. Trump’s ac­tions in their charg­ing doc­u­ments and la­bel the pres­i­dent as an unin­dicted co-con­spir­a­tor — a tac­tic em­ployed with Nixon. Ex­pand­ing probe

Con­tro­versy con­tin­ued to swirl with a Washington Post re­port Wed­nes­day in which uniden­ti­fied sources claimed Mr. Mueller’s in­ves­ti­ga­tion had ex­panded beyond Rus­sian med­dling to in­clude an ex­plo­ration of Mr. Trump’s re­cent con­duct — in­clud­ing the fir­ing of Mr. Comey on May 9.

The Post re­ported that Mr. Mueller is seek­ing to in­ter­view Trump ad­min­is­tra­tion of­fi­cials un­in­volved with the pres­i­den­tial cam­paign, in­clud­ing Di­rec­tor of Na­tional In­tel­li­gence Daniel Coats, Na­tional Se­cu­rity Agency Di­rec­tor Adm. Michael S. Rogers and for­mer NSA Deputy Di­rec­tor Richard Led­gett, with the goal of as­sess­ing whether any­one tried to block the Rus­sia probe.

A spokesman for Mr. Mueller told The Times on Thurs­day that Of­fice of Spe­cial Coun­sel sim­ply had no com­ment on the di­rec­tion of the spe­cial coun­sel’s probe, but Mr. Trump’s per­sonal at­tor­ney said through a spokesman that the leaks were “out­ra­geous, in­ex­cus­able and il­le­gal.”

A source close to Mr. Coats con­firmed that the di­rec­tor of na­tional in­tel­li­gence would be in­ter­viewed by Mr. Mueller but sug­gested that the di­rec­tor had not been no­ti­fied by about the fo­cus of the ques­tions. A spokesman for Mr. Coats de­clined to com­ment.

An As­so­ci­ated Press poll showed Thurs­day that a clear ma­jor­ity of Amer­i­cans be­lieve Mr. Trump tried to in­ter­fere with the in­ves­ti­ga­tion into whether Rus­sia med­dled in the elec­tion and pos­si­ble Trump cam­paign col­lu­sion. Just 1 in 5 said they sup­ported Mr. Trump’s de­ci­sion to fire Mr. Comey.

The AP-NORC Cen­ter for Pub­lic Af­fairs Re­search poll found just over half of Amer­i­cans say they dis­ap­prove of Mr. Trump’s fir­ing of Mr. Comey. The num­ber grows to 79 per­cent among Democrats. Over­all, only 22 per­cent of Amer­i­cans sup­port Mr. Comey’s dis­missal.

Some un­so­licited help came Thurs­day from an un­ex­pected quar­ter: the Krem­lin, where Rus­sian Pres­i­dent Vladimir Putin was hold­ing his an­nual marathon call-in show for or­di­nary Rus­sians to ask him ques­tions.

At one point, Mr. Putin jok­ingly of­fered “asy­lum” for the fired Mr. Comey, com­par­ing his case to that of NSA leaker Ed­ward Snow­den, who has been liv­ing in ex­ile in Rus­sia since 2013.

“It looks weird,” Mr. Putin said, “when the chief of a se­cu­rity agency records his con­ver­sa­tion with the com­man­der in chief and then hands it over to me­dia via his friend. What’s the dif­fer­ence then be­tween the FBI di­rec­tor and Mr. Snow­den?”

Mueller

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