Is there a fundamental weakness in the potential case of obstruction against President Donald Trump? Samuel Estreicher and David Moosman argue in a Just Security piece, “Mueller’s Uphill Battle: Obstruction Law and the Comey Firing,” that the special counsel Robert Mueller may have difficulty connecting President Trump’s allegedly obstructive acts to an existing or foreseen “official proceeding,” as required by the federal obstruction statutes. A very commonsense reading of the available evidence, however, suggests that when President Trump met with then-FBI director James Comey on February 14, 2017, and asked Comey to let the Flynn case go, he was already directly seeking to impede an inevitable grand jury investigation, and then later when he fired Comey on May 9, 2017 in connection with the Russia investigation, he was aiming to bring to a close an already existing grand jury investigation, thereby satisfying the “nexus” requirement that the Supreme Court imposed in United States v. Aguilar.
The relevant federal criminal provision — 18 U.S.C. § 1512(c)(2) — makes it a crime to obstruct “any official proceeding, or attempt to do so.” The statute specifies that “an official proceeding need not be pending or about to be instituted at the time of the offense.” However, as Estreicher and Moosman argue, relying on the Supreme Court’s decision in Arthur Andersen LLP v. United States, prosecutors bringing charges under 18 U.S.C. § 1512 must at a minimum show that an official proceeding, such as a grand jury investigation, was foreseen, and that the defendant knew that his actions would likely affect those proceedings.
I already explored in a previous essay how and why Trump would have likely foreseen a grand jury investigation already when he spoke to Comey about Flynn on Valentine’s Day, and known about an existing grand jury investigation when he fired Comey some months later. Subsequent reporting has only reinforced the point. With regard to Trump’s request to let the Flynn case go (made in the Oval Office after everyone else was sent out), Trump’s lawyer John Dowd has now conceded that Trump already knew at the time that Flynn had lied to the FBI, a federal crime. Based on this evidence and the substance of Trump’s request to Comey, a jury could reasonably infer that Trump foresaw that a grand jury would be empaneled to investigate and charge Flynn. Trump made his request precisely because he imagined that Flynn was in criminal jeopardy. And as I detailed in my previous essay, when Trump fired Comey, he either already knew that a grand jury was already empaneled or he must have foreseen that one was imminent.
Estreicher and Moosman have now focused, however, on another condition for a successful obstruction case: the required nexus between the defendant’s acts and the foreseen grand jury. As they correctly and carefully set out, the Supreme Court in Arthur Andersen held that the “nexus” requirement that the Court found in Aguilar with respect to 18 U.S.C. § 1503, which applies to existing official proceedings, also applies to 18 U.S.C. § 1512, which covers foreseen proceedings. Therefore, the government must prove that the defendant knew that his actions would likely affect foreseen proceedings.
It is here that Estreicher and Moosman suggest that Mueller might face his greatest difficulty. In Aguilar, the Supreme Court found that the required nexus was not satisfied when the defendant made false statements to an FBI agent who “might or might not testify before a grand jury.” The mere possibility that the false statements would reach the grand jury was not enough, the Court found: the defendant had to intend or know that they likely would. Applying this holding to the known facts regarding Trump, Estreicher and Moosman reason that:
At worst, on our present understanding of the facts, the president intended to dissuade Comey, who was involved in a counterintelligence inquiry into Russian meddling in our elections, from continuing his investigation of Flynn, but there is no evidence he intended to interfere with any grand jury proceeding. Again, the president’s firing of Comey was a troubling act, and may become part of a showing of abuse of position making its way into a bill of impeachment, but (based on what we know) was not criminally culpable under the Court’s obstruction of justice jurisprudence.
This analysis relies, however, on an exceedingly narrow and constrained reading of the law and the facts, and seems to overlook the very direct way that it appears Trump sought to impede foreseen grand jury proceedings. In Aguilar, the defendant was charged with attempting to “influence” the grand jury by lying to the FBI agent. And needless to say, the defendant in that case had no official authority with respect to the grand jury or law enforcement officials who would present the case to the grand jury, and therefore was a distant actor seeking to influence another actor who in turn might (or might not) appear before the grand jury. That was too attenuated a connection for the Supreme Court to find obstruction.
The circumstances of this case are very different. The allegation here would not be that Trump sought to “influence” the grand jury proceeding from afar, but rather that he attempted to “impede” it by stopping it before it ever got going. And on this point, it is critical that Trump stands in a very different relationship to the law enforcement officials responsible for presenting any evidence against Flynn or regarding the Russia collusion investigation to the grand jury. He’s not some remote actor like in Aguilar who may be seeking to influence someone who then may end up influencing the grand jury. No. As the president, he has direct authority over the Attorney General who in turn has direct authority over the law enforcement officials responsible for commencing a grand jury investigation. When Trump spoke with Comey on Valentine’s Day and when he later fired Comey, he wasn’t trying to influence the grand jury from afar, he was trying to kill the whole investigation. It was not an act targeted against a single low-level FBI agent who might appear before the grand jury. It was an act that applied to every FBI agent directly involved in the case including those who would, of necessity, be involved in bringing the case to the grand jury. What more do you need to show to establish a direct attempt to “impede”?
The Second Circuit’s 2007 decision in United States v. Reich is instructive. In that case, the defendant forged an order from a United States Magistrate-Judge and sent it to his opponent in litigation, causing his opponent to withdraw a mandamus petition to the Second Circuit, believing that the Magistrate-Judge’s “order” rendered the mandamus petition moot. The Second Circuit found that “the necessary nexus [for an 18 U.S.C. § 1512(c)(2) charge of impeding an official proceeding] can exist when the discretionary actions of a third person are required to obstruct the judicial proceeding.” Because the forged order rendered the mandamus claim moot, it was “foreseeable that upon receiving the forged Order,” the defendant’s opposing counsel would “withdraw the petition, as he in fact did.” The Second Circuit concluded that the evidence was clearly sufficient to establish a “relationship in time, causation, or logic” between the defendant’s transmission of the forged order and the effects on the judicial proceeding.
The scenario here is analogous. In asking Comey to go easy on Flynn, it seems clear that Trump was hoping that Comey would recommend no charges against Flynn (a power Trump knew Comey had from the Hillary Clinton email investigation), which in turn would completely impede, by ensuring that it never happened, the very grand jury proceeding that Trump was hoping to stop. The relationship between Trump’s request and the desired result was both foreseen and direct. And with respect to the firing of Comey, it seems clear that it was also Trump’s hope that it would bring the Russian collusion investigation to an end, again with the hope of impeding a foreseeable (and likely already existing) grand jury investigation.
And finally to be clear, it is not necessary under 18 U.S.C. § 1512 to show that the defendant’s actions had their intended effect. In an illustrative case in 1997, the Sixth Circuit held that “an endeavor to obstruct justice violates the law even if … the plan is doomed to failure.” It is the president’s attempts to stop grand jury proceedings that matter, not whether or not he succeeded or was likely to succeed.
At the end of the day, what is striking about the known facts regarding Trump’s actions is not how removed they were from the anticipated official proceedings, or how speculative the intended effects of his actions were, but just the opposite. The known facts indicate, and are likely sufficient to convince a jury, that Trump tried to act directly against the Flynn investigation and then the entire Russia collusion investigation, by taking steps to bring it all to an end. If that’s not seeking to impede an official proceeding directly, it’s hard to see what is.
Thanks to Noah Heinz, HLS ’18, for research assistance on this article.