PRESIDENTIAL OBSTRUCTION OF JUSTICE: THE CASE OF DONALD J. TRUMP OCTOBER 10, 2017 BARRY H. BERKE, NOAH BOOKBINDER, AND NORMAN L. EISEN* * Barry H. Berke is co-chair of the litigation department at Kramer Levin Naftalis & Frankel LLP (Kramer Levin) and a fellow of the American College of Trial Lawyers. He has represented public officials, professionals and other clients in matters involving all aspects of white-collar crime, including obstruction of justice. Noah Bookbinder is the Executive Director of Citizens for Responsibility and Ethics in Washington (CREW). Previously, Noah has served as Chief Counsel for Criminal Justice for the United States Senate Judiciary Committee and as a corruption prosecutor in the United States Department of Justice’s Public Integrity Section. Ambassador (ret.) Norman L. Eisen, a senior fellow at the Brookings Institution, was the chief White House ethics lawyer from 2009 to 2011 and before that, defended obstruction and other criminal cases for almost two decades in a D.C. law firm specializing in white-collar matters. He is the chair and co-founder of CREW. We are grateful to Jeff Dunlap, Sam Koch, and Conor Shaw for their invaluable assistance in preparing this paper. The Brookings Institution is a nonprofit organization devoted to independent research and policy solutions. Its mission is to conduct high-quality, independent research and, based on that research, to provide innovative, practical recommendations for policymakers and the public. The conclusions and recommendations of any Brookings publication are solely those of its author(s), and do not reflect the views of the Institution, its management, or its other scholars. CREW is a party (and is providing representation to other parties) in active litigation involving President Trump and the administration. More details can be found at https://www.citizensforethics.org/. Barry Berke and Kramer Levin are outside pro bono counsel to CREW. The authors have no other relevant interests to disclose. ii Executive Summary There are significant questions as to whether President Trump obstructed justice. We do not yet know all the relevant facts, and any final determination must await further investigation, including by Special Counsel Robert Mueller. But the public record contains substantial evidence that President Trump attempted to impede the investigations of Michael Flynn and Russian interference in the 2016 presidential election, including by firing FBI The public record Director James Comey. There is also a question as to whether President Trump conspired to obstruct justice contains substantial with senior members of his administration although the evidence that President public facts regarding conspiracy are less well- Trump attempted to developed. impede the Attempts to stop an investigation represent a investigations of common form of obstruction. Demanding the loyalty of Michael Flynn and an individual involved in an investigation, requesting that Russian interference in individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the 2016 presidential the type of acts that have frequently resulted in election, including by obstruction convictions, as we detail. In addition, to the firing FBI Director extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too James Comey. may provide additional grounds for obstruction charges. While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case. That Comey ignored that instruction is beside the point under applicable law. We also note that potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction. Here, such actions may include fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope The fact that the there are no ‘tapes’ of our conversations,” despite having president has lawful “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations. authority to take a particular course of The president’s legal authority to remove an FBI action does not director is a red herring—at least insofar as it has been used as a blanket justification for the president’s actions. immunize him if he takes The fact that the president has lawful authority to take a that action with the particular course of action does not immunize him if he unlawful intent of takes that action with the unlawful intent of obstructing a obstructing a proceeding for an improper purpose. The president will certainly argue that he did not have the requisite criminal proceeding for an intent to obstruct justice because he had valid reasons to improper purpose. exercise his authority to direct law enforcement resources or fire the FBI head. While we acknowledge iii that the precise motivation for President Trump’s actions remains unclear and must be the subject of further fact-finding, there is already evidence that his acts may have been done with an improper intent to prevent the investigation from uncovering damaging information about Trump, his campaign, his family, or his top aides. Special Counsel Mueller will have several options when his investigation is complete. He could refer the case to Congress, most likely by asking the grand jury and the court supervising it to transmit a report to the House Judiciary Committee. That is how the Watergate Special Prosecutor coordinated with Congress after the grand jury returned an indictment against President Nixon’s co-conspirators. Special Counsel Mueller could also obtain an indictment of President Trump and proceed with a prosecution. While the matter is not free from doubt, it is our view that neither the Constitution nor any other federal law grants the president immunity from prosecution. The structure of the Constitution, the fundamental democratic principle that no person is above the law, and past Supreme Court precedent holding that the president is amenable to other forms of legal process all weigh heavily in favor of that conclusion. While there can be debate as to whether a sitting president can be indicted, While the matter is not there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for free from doubt, it is our that time, using a sealed indictment or otherwise, is view that neither the another option for the special counsel. Constitution nor any other federal law grants Congress also has actions that it can take, including continuing or expanding its own investigations, the president immunity issuing public reports, and referring matters for criminal from prosecution. or other proceedings to the Department of Justice or other executive branch agencies. In addition, there is the matter of impeachment. We describe the articles of impeachment drafted against Presidents Richard Nixon and Bill Clinton, as well as those drafted against Judges Harry Claiborne and Samuel Kent to show that obstruction, conspiracy, and conviction of a federal crime have previously been considered by Congress to be valid reasons to remove a duly elected president from office. Nevertheless, the subject of impeachment on obstruction grounds remains premature pending the outcome of the special counsel’s investigation. iv Table of Contents Executive Summary ..................................................................................................................... iii Table of Contents.......................................................................................................................... v Introduction ................................................................................................................................... 6 I. What are the relevant facts?.................................................................................................. 8 A. Key players ......................................................................................................................... 8 B. The investigation into Russian interference in the 2016 presidential campaign and possible coordination with the Trump campaign ........................................ 9 C. Lt. Gen. (Ret) Michael Flynn ............................................................................................. 15 D. President Trump’s potential attempts to influence the investigations of Russian interference in the 2016 election and of Flynn ................................................... 19 E. Subsequent developments ............................................................................................... 27 II. What is the case that President Trump obstructed justice? ........................................... 34 A. Potential violations of key federal obstruction of justice statutes – 18 U.S.C. §§ 1503, 1505, and 1512 ...................................................................................... 34 B. Potential conspiracy to obstruct justice in violation of 18 U.S.C. section 371....................................................................................................................................