Trump Is Obstructing Justice. And It’s Working.

December 6, 2019
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In laying out the case against Donald Trump, the House Intelligence Committee noted that Trump “is the first President in the history of the United States to seek to completely obstruct an impeachment inquiry undertaken by the House of Representatives under Article I of the Constitution, which vests the House with the ‘sole Power of Impeachment.’”

The report noted that the president “has publicly and repeatedly rejected the authority of Congress to conduct oversight of his actions and has directly challenged the authority of the House to conduct an impeachment inquiry into his actions regarding Ukraine.”

Trump’s resistance has been comprehensive. Trump, the report notes, “has ordered federal agencies and officials to disregard all voluntary requests for documents and defy all duly authorized subpoenas for records. He also directed all federal officials in the Executive Branch not to testify—even when compelled.”

This makes Trump historically unique. As of today, Congress has received only a single document from his administration: the read-out of the July 25 call between Trump and the Ukrainian president. Everything else is behind the Trumpian stonewall, along with testimony of key players ranging from Mick Mulvaney to John Bolton.

“No other president,” the report concludes, “has flouted the Constitution and power of Congress to conduct oversight to this extent.”

Richard Nixon famously resisted releasing the White House tapes until compelled by the Supreme Court, but nevertheless “accepted the authority of Congress to conduct an impeachment inquiry and permitted his aides and advisors to produce documents and testify to Congressional committees.”

It now seems inevitable that at least one of the articles of impeachment will center on Trump’s obstruction of Congress and/or justice.

So this is a good time to step back and recognize the most salient fact about Trump’s obstruction: It is working.

As galling as it may be to acknowledge it, the reality is that Trump’s effort to obstruct Congress is a success, much like his well-documented efforts to obstruct the Mueller probe. The House decision not to push for the enforcement of its subpoenas virtually guarantees that the case will go to the Senate without volumes of pertinent evidence.

I am among those who think the evidence at hand is more than sufficient to justify Trump’s impeachment. But his partisan supporters will continue to declare the effort a sham and the case unproven while unironically complaining about the lack of direct evidence—and at the same time ignoring Trump’s all-out effort to conceal such direct evidence from Congress.

Historians, who will know far more about Trump’s conduct that we do now, will marvel at how much evidence of his misconduct was left on the table. They will have access to documents, emails, text messages, memoirs, and transcripts (possibly even eventual court documents, should we wind up with a case titled something like United States vs. Giuliani) that we have not seen.

At least some of them will write, “in fairness…” and then note the comprehensive nature of Trump’s obstruction. But, by then, Trump will have been acquitted by the Senate and claimed “total exoneration.”

For Trump, this is the lesson that he learned from the Mueller probe: Investigations can be successfully obstructed, the rule of law be damned. 

And this goes to the heart of the current impeachment effort: The obstruction is not a sideshow. It is heart of Trump’s attack on constitutional norms. In effect, he is in the process of shattering the system of checks and balances that we have relied on to check executive power.

If he continues to succeed, it will set both a political and constitutional precedent that will be all but impossible to reverse.

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Here, the failure of our political and legal system to constrain Trump’s misconduct becomes manifest.

The Mueller Report was not ambiguous about Trump’s efforts to obstruct the special counsel investigation. Trump, Mueller wrote, “engaged in efforts to curtail the Special Counsel’s investigation and prevent the disclosure of evidence to it, including through public and private contacts with potential witnesses.”

Specifically:

Many of the president’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. . . . And no principle of law excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened . . .

Our investigation found multiple acts by the President that were capable of exerting undue influence over . . . investigations . . . the incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels.

Notably, Mueller did not rule out the possibility that some of those efforts succeeded. To the contrary, the investigation, “established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation.” It would have been worse, if Trump had not been occasionally thwarted in his efforts by subordinates refusing to carry out his orders.

But Trump’s efforts to obstruct justice were laid out in detail: The attempts to intimidate witnesses, the dangled pardons to potential witnesses, such as his former attorney Michael Cohen and campaign chairman Paul Manafort.

At one point, Manafort confided to Rick Gates, that word had been passed to him that the president was “going to take care of us.” Mueller concluded that the record “supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.” Mueller also found that the evidence “supports a conclusion that the President intended, at least in part, to influence the jury.”

Lawfare’s Benjamin Wittes concluded that Trump’s strategy may, in fact, have worked. Notably, writes Wittes, “Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction.” Manafort ultimately breached his plea deal after prosecutors concluded that he had failed to cooperate and was lying to them.

“So the reality here may well be that the president’s obstructive conduct actually did, in fact, obstruct the investigation,” wrote Wittes. “The president hinted that Manafort should not ‘flip’ and that he would take care of him. And Manafort acted in a fashion consistent with his relying on those assurances. None of this is authorized in any sense by Article II of the Constitution.”

We knew all of this months ago.

Mueller’s report concluded with what should have been read as a startlingly direct invitation to Congress to act: “[W]e concluded that Congress has the authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice,” Mueller wrote.

“The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

Congress’s failure to act then sent a message to Trump; its failure to act now will send an even stronger one to a president who genuinely believes that he is, in fact, above the law.

Charles Sykes

Charlie Sykes is a founder and editor-at-large of The Bulwark and the author of How the Right Lost Its Mind. He is also the host of The Bulwark Podcast and an MSNBC contributor.