Did Trump Engage in the Obstruction of Justice? The Special Reasons for a Special Prosecutor

Many have now raised the question as to whether the President (and perhaps others advising him) engaged in the obstruction of justice.   To use the words of the statute, did Trump (and perhaps others advising him) “corruptly . . .endeavor[] to influence, obstruct, or impede the due and proper administration of the law” with respect to the pending investigating?

If firing the chief investigator in a criminal probe that leads to one’s inner circle doesn’t count as a form of influence, I don’t know what does. The question then becomes did Trump do so with “improper purpose”?

This is an incredibly serious charge. Even suggesting that an obstruction of justice charge should be considered is a very serious matter. But so is the firing the FBI Director in the midst of a criminal probe that potentially implicates one’s own presidential campaign. (And just in case anyone was fooled, Trump’s repeated insistence that he had assurances he wasn’t personally being investigated doesn’t help him in this matter. Obstruction of justice charges don’t depend on whether or not he is the direct target of the investigation; after all, there are obvious reasons why one might want to tamp down the criminal probes of close friends and associates as well.)

Deciding whether such charges are in fact warranted will require a careful, thorough, and independent investigation and evaluation of the facts—examining, among other things, the communications between the President, the Attorney General, and Deputy Attorney General that led up to Comey’s firing. This is something that only someone that is freed from the day-to-day supervision of these same individuals can be expected to do.

In fact, the best, and perhaps only way, for Department of Justice to regain credibility in the matter is to appoint a tough and credible special prosecutor. And then stay out of his or her way.

Of course, the appointment of a special prosecutor doesn’t guarantee we get the full, thorough, and independent investigation needed. A special prosecutor is still, ultimately, under the control of the Justice Department officials that make the appointment. Even special prosecutors can be fired. And there is no guarantee that any of the findings will ever see the light of day (which is why a special commission also is needed). But at this point, it is only credible prosecutorial option available.

Unless, of course, the House moves to impeach. . . .

I have more to say about this here. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).