By Andrew Napolitano
Published May 02, 2019
One should expect fireworks this week as Attorney General William Barr testifies before the Judiciary Committee of the Senate about the investigation and the report of special counsel Robert Mueller regarding Russian interference in the 2016 American presidential election. By now, most folks know that the interference was substantial but don't seem to care much.
We know from Mueller's report that Russian intelligence agents engaged in sophisticated cyber warfare against the United States, and we did very little to resist them. The Russians were physically here. They engaged via email and text with many Americans. They ran popular political rallies. They attempted to alter vote tallies. They received internal polling data from the Trump campaign, with which they communicated 127 times in 16 months.
None of this seems to be causing outrage. Instead, the outrage is around the efforts President Donald Trump personally undertook to interfere with the challenging work of finding out who the Russians were and what they did. Why would he attempt to derail such an investigation? Did then-President Barack Obama know what the Russians were up to? That seems unlikely, since he ardently wished to be succeeded in office by Hillary Clinton, and the Russian efforts were aimed at helping Trump.
But the American intelligence community should have known. It captures all the fiber optic communications of all people in America. This mass suspicionless surveillance is unlawful and unconstitutional, but the leadership of our 60,000-person strong domestic spying apparatus has persuaded every president since George H.W. Bush that all this spying keeps America safe. We now know that it doesn't. It didn't find a single Russian spy bent on influencing the election.
Former American spies have been complaining for years that capturing the keystrokes of all people in America 24/7 produces information overload -- too much data to sift through when searching for those trying to harm our way of life.
From the Mueller report, we also know the determination of the attorney general to prevent any criminal charges -- no matter the evidence -- from being brought against the president for his attempts to impede the investigation.
The credible evidence that Mueller found of Trump's obstruction was rejected by Barr based on a unique legal theory of the obstruction of justice statute, a theory that even Barr's own prosecutors have rejected.
The Barr argument goes thusly: In order for a person to obstruct justice, there must be some justice to obstruct. Hence, if the alleged obstructer did not commit the underlying crime being investigated, then his so-called obstruction did not impair justice; it just impaired a fruitless investigation. This sophistry would make the Jesuits proud.
As well, this argument goes, so long as presidential interference in an investigation is grounded in the Constitution and is not "corrupt" -- the word in the federal obstruction of justice statute -- it is not prosecutable.
The nearly universal view of law enforcement, however, rejects Barr's narrow view of obstruction and interprets the plain meaning of the federal statute as it was written. Thus, under this view, all corrupt interference or attempted interference with an investigation or judicial proceeding constitutes obstruction. A corrupt purpose is one that seeks personal gain for the obstructer, such as shielding him from the revelation of unpleasant truths.
So, if Trump fired FBI Director James Comey because Trump wanted to be the tallest person in the room or because he had a better director candidate in mind, there is no corrupt purpose. But if he fired Comey to delay or stop the FBI's acquisition of painful truths about Russia, as he told NBC's Lester Holt was his purpose, then whether the truths he wants to hide are about unlawful behavior or not, Trump's purpose is corrupt and his behavior is prosecutable.
As well, if the pre-presidential Trump instructed retired Lt. Gen. Michael Flynn to tell the Russian ambassador that Trump would relax sanctions on Russian banks and oligarchs once in office -- as Flynn told Mueller was the case -- Trump's efforts to hide that truth from FBI investigators constitute obstruction. And, if Trump lied to the public about the communications between his campaign and the Trump Organization and the Russians -- he said there were none -- and he tried to prevent the FBI from learning about the 127 communications, Trump's purpose is corrupt.
Asking Deputy National Security Adviser K.T. McFarland to put an untruthful document about Flynn's conversation with the Russian ambassador into a government file that is likely to be subpoenaed and asking White House Counsel Don McGahn to lie to FBI agents are acts of obstruction. They constituted ordering subordinates to commit crimes for a corrupt purpose -- shielding Trump from the revelation of unpleasant truths about his behavior.
We know that Attorney General Barr's own DOJ rejects its boss' narrow view of obstruction because of an indictment it announced just last week. A federal grand jury in Boston indicted a sitting judge of the Superior Court of Massachusetts for obstruction of justice. Her crime? She allegedly told the ICE agents in her courtroom to arrest a defendant appearing in front of her that the defendant would be released from her custody in the courthouse lobby.
When sheriff's officers instead released him to the courthouse parking lot, and the defendant escaped, the judge was accused of obstructing justice even though it is legally impossible for her to have committed the underlying crime that ICE was prosecuting -- illegal reentry into the U.S. by a once-deported and undocumented immigrant.
The U.S. is planted thick with laws intended to preserve human freedom by keeping the government honest. When the government breaks its own laws and gets away with it, it undermines the personal liberty of us all.