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Op-Ed Contributors

Did Trump Obstruct Justice?

Barry BerkeNoah Bookbinder and

President Trump in the Oval Office, May 10, the day after he fired James Comey, the F.B.I. director.Credit...Evan Vucci/Associated Press

Reporting this week by The New York Times and in a new book by Michael Wolff significantly adds to the evidence that President Trump obstructed justice. Of all the elements that must be proved to establish the offense of obstruction, the one that is most critical is corrupt intent: Did Mr. Trump wrongfully intend to obstruct the criminal and congressional investigations? The facts contained in these reports strongly suggest he did.

We now know, for example, that the president took aggressive steps to prevent Attorney General Jeff Sessions from recusing himself from the Justice Department’s investigation because he needed Mr. Sessions to protect and safeguard him, as he believed Eric Holder Jr. and Robert Kennedy did for their presidents. This shows that from the outset the president was concerned that he needed protection from the impact of any investigation. In fact, when the president’s efforts were unsuccessful, he purportedly responded by saying, “Where’s my Roy Cohn?” perhaps suggesting that Mr. Trump wanted the attorney general of the United States to act as his personal criminal defense lawyer — a startling view into his state of mind.

Equally significant are new revelations that the president had drafted a letter to the F.B.I. director at the time, James Comey, describing the Russian investigation as “fabricated and politically motivated.” Those disclosures support that the president’s statements to the press and the public in connection with firing Mr. Comey were misleading. The president, of course, publicly claimed that Mr. Comey was fired because of his handling of the investigation into Hillary Clinton’s emails. This matters because attempts to cover up the truth are classic indicators of a culpable state of mind under the obstruction statutes.

In this same vein, the Wolff book claims that the president’s lawyers believed that his efforts aboard Air Force One last summer to shape his son Donald Jr.’s statement about a meeting at Trump Tower with Russians was “an explicit attempt to throw sand into the investigation’s gears.” Mr. Wolff also asserts that one of Mr. Trump’s spokesmen quit over the incident because of a concern that it was obstruction of justice. That was a wise move. If the president knowingly caused his son to make a false statement to interfere with the investigations or cover up the facts, that alone could constitute obstruction of justice.

Another ominous note for the president is The Times’s reporting that the special counsel, Robert Mueller, has substantiated Mr. Comey’s narrative of his dealings with the president, including through notes maintained by members of the White House staff. Whatever one may think of some of Mr. Comey’s decisions, he has a spotless reputation for candor. The president’s reputation is the opposite. But in a swearing contest between two witnesses, a responsible prosecutor looks for independent corroboration no matter who those witnesses are. It seems Mr. Mueller is finding it.

This week’s revelations also renew the question of possible charges of conspiracy to obstruct justice against others who may have been involved with Mr. Trump’s efforts. Those possibly cooperating with him in attempting to interfere with the investigation or cover up the truth could be in Mr. Mueller’s sights as well. To take only one example, while one aide purportedly resigned over Mr. Trump’s dictated statement about his campaign’s meeting with Russian operatives, if others were involved in writing and releasing that statement knowing it to be false, that could be sufficient to bring them within the ambit of a conspiracy to obstruct justice. Reports of possible involvement by Mr. Sessions in efforts to obtain negative information about Mr. Comey to feed to the press provide another area that Mr. Mueller is likely to investigate.

Not surprisingly, Mr. Trump’s defenders continue to respond to each of these new disclosures by repeating the canard that the president can never obstruct justice by taking actions within his legal authority — such as firing the F.B.I. director — even if done for an improper purpose. That is legally incorrect.

Courts have recognized repeatedly that a government official’s clear legal authority to take some action does not immunize that official from prosecution for crimes relating to the exercise of that authority. Judges, sheriffs, police officers, lawyers, elected officials and many others have been prosecuted for obstruction of justice for taking actions that would have been entirely proper and within their lawful authority but for the fact that they were motivated by a corrupt intent to obstruct justice. There is no principled basis for exempting a president from this rule; in our system, no person is above the law, no matter how high the office.

This should not be a controversial proposition. For example, if the president accepted a large bribe from a mobster to fire the F.B.I. director investigating him, the president clearly could be prosecuted for bribery. The same is true here. If the president sought protection from Mr. Sessions for wrongdoing, made similar loyalty demands on Mr. Comey, fired him when he would not comply and sought to cover up the truth about it all, that is obstruction of justice, pure and simple.

That is not, however, to say that the case has become a slam dunk, even if all the new reporting proves accurate. While the president’s legal powers are not an absolute bar to prosecution (despite the claims of his defenders), they do go to his intent. If he and his lawyers can persuade Mr. Mueller that Mr. Trump was simply exercising his authority to terminate an employee with good reason and no corrupt intent, then he may well escape further proceedings.

That question cannot, of course, be finally resolved until Mr. Mueller and the president meet face to face, so that Mr. Mueller can hear his story and judge his credibility. We are presumably getting close to the point where the president himself is going to have to formally answer questions about his conduct and state of mind put directly to him by the special counsel. A refusal to do so would be damning, particularly following the new revelations.

The problem for the president is that sitting for such an interview may be equally damning. It is hard to see how he will explain away all the accumulated evidence of obstruction. Lying would expose him to possible prosecution for false statements or other offenses, so his usual expedient of bending the truth is not available. Then there is the most devastating problem of all: The president no longer seems to be able to distinguish between truth and fiction. Even if he appears to be attempting to tell the truth, how can Mr. Mueller believe a word he says?

Barry Berke is a co-chairman of the litigation department at Kramer Levin Naftalis & Frankel, where he is a partner specializing in white-collar criminal defense. Noah Bookbinder is the executive director of Citizens for Responsibility and Ethics in Washington and a former federal corruption prosecutor. Norman Eisen, a senior fellow at the Brookings Institution, is the chairman of CREW.

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