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As Collusion Evidence Emerges, Obstruction Allegations Begin To Look More Damaging

The criminal investigations of the Trump administration seem largely to have followed two separate paths: on the one hand, whether there was collusion between the Trump campaign and Russian interference with the election, and on the other hand whether President Trump obstructed justice. Commentary has alternated between these inquiries, but has not always connected the two. In part that is because of the piecemeal way the evidence has emerged. In part it is because the two inquiries have distinct legal elements and can, in fact, exist separately. However, at a moment when our attention is focused on the question of possible collusion, it is worth remembering this obvious point: the two investigations are, in fact, very much connected. As evidence mounts of one set of crimes (collusion), it also supports the other (obstruction).

As I set forth here, and here, the obstruction investigation is likely focused at the moment on whether President Trump sought improperly to influence or shut down the FBI’s investigations into former National Security Advisor Michael Flynn and/or investigations into possible collusion between the Trump campaign and the Russians. Because Trump’s actions are largely not in serious dispute, the focus has mainly been on his intent, that is, did he act “corruptly” or with an improper purpose in his interactions with FBI Director James Comey, or in his subsequent firing of Comey?

To the extent it was believed that there was no underlying story of wrongdoing by the Trump campaign with respect to Russian interference with the presidential election, the obstruction allegations seemed to float on their own. Despite the old adage that “the cover-up is always worse than the crime,” obstruction charges will be harder to prove if in fact there were no improprieties to hide. Remember that prosecutors exercise considerable discretion in deciding whether to bring charges, and in making that decision they will assess not only whether the individual’s conduct and intent satisfies all the elements of the alleged crime, but also whether it feels like criminal conduct, whether the jury will be persuaded to convict.

Regarding Trump, if it seemed that Trump was acting only to block the investigation and prosecution of Michael Flynn’s individual acts of alleged wrongdoing, some of which themselves might raise questions about whether they warrant criminal charges, a prosecutor might hesitate (not to mention Congress, when considering the question of impeachment). Could the prosecutor persuade the jury that when Trump asked Comey to let the Flynn investigation go, Trump wasn’t just trying, in his bumbling Trump sort of a way, to put in a good word for Flynn? Could the prosecutor persuade the jury that in firing Comey, Trump had not simply concluded that Comey was badly mishandling the Russia investigation and had to be replaced by a more effective Director?

Many might think that the evidence is already sufficient to overcome such defenses, but the point is that absent some indication of a larger, self-interested, cover-up, the ultimate factfinders – whether they be on a jury or in Congress – might be more likely to give Trump the benefit of the doubt, grabbing onto these explanations as a way to excuse Trump’s conduct. And that is why the emerging collusion evidence could end up mattering so much to the obstruction inquiry. It has the potential to change everything. Suddenly, Trump’s actions to stop the FBI’s investigations, not to mention his incessant tweets and public statements about the Russia inquiries, feel much more sinister.

Now it appears that Trump may have in fact had something much larger to hide. Bob Bauer has carefully explained how the Trump campaign’s activities with respect to Russia may have amounted to criminal wrongdoing. Even if the evidence does not reach the level of criminality, however, there is no question that it is extremely damaging to Trump, his administration, and people very close to him. Trump is famously obsessed with establishing the legitimacy, and size, of his electoral victory. He cannot be happy about these recent revelations that show his campaign soliciting Russian assistance and that implicate senior members of his campaign and administration, two of whom happen to be his son and son-in-law. Further, these revelations continue to have the potential to bog down his administration as it continues to try to get itself off the ground.

When Trump engaged in his alleged acts of obstruction, did he have a sense that the investigation would ultimately unravel this story that is now emerging? With regard to Flynn, did he know that Flynn’s story was an important piece in the larger picture, one that he did not want revealed? Or did he know that the FBI’s pressure on Flynn could force him to give up other incriminating evidence? Far from simply acting to shield a former subordinate and ally, was Trump actually just trying to protect himself, and those close to him?

If the answer to any of these questions is yes, then Trump’s actions will have a very different feel to them, and his potential defenses much harder, if not impossible, to swallow. Doubts about whether Trump’s actions merit serious consequences could be effectively mitigated. For this reason, it is important to keep an eye on both parts of the investigations, and how they are related. There is no question that the investigators will.

Image: John Moore/Getty

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About the Author

served for ten years as a federal prosecutor at the Department of Justice and the U.S. Attorney's office in Boston, and eight years as an international criminal prosecutor at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court in The Hague. You can follow him on Twitter (@alexgwhiting).