Authors: Barry H. Berke, Noah Bookbinder and Norman L. Eisen

Attempts to stop an investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the type of acts that have frequently resulted in obstruction convictions. In addition, to the extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges.

Potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction.

The fact that the president has lawful authority to take a particular course of action does not immunize him if he takes that action with the unlawful intent of obstructing a proceeding for an improper purpose. While we acknowledge 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.

  1. 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.
  2. 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.
  3. While there can be debate as to whether a sitting president can be indicted, there is no doubt that a president can face indictment once he is no longer in office. Reserving prosecution for that time, using a sealed indictment or otherwise, is another option for the special counsel.
  4. Congress also has actions that it can take, including continuing or expanding its own investigations, issuing public reports, and referring matters for criminal or other proceedings to the Department of Justice or other executive branch agencies.
  5. 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.

If Robert Mueller's investigation conclusively establishes that the President deliberately fired FBI director James Comey to terminate a criminal investigation that would have led directly to the White House -- and possibly to the President himself or those close to him -- this is an "obstruction of justice" for which even the President and his staff can be prosecuted. If the President fired Comey to protect himself or his allies from criminal prosecution, there would be no legitimate law enforcement policy objective serving the interests of the American people. He would merely be aiding and abetting in a coverup in pursuit of a purely personal objective, no different than accepting a bribe.


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