This section of Turley’s masterpiece covers the various “obstruction of justice” claims. The conclusion:

“Basing impeachment on this obstruction theory would itself be an abuse of power. . . by Congress. It would be an extremely dangerous precedent to set for future presidents and Congresses in making an appeal to the Judiciary into “high crime and misdemeanor.”

Boy, Turley did a terrific job…

B.  Obstruction of Justice

 Another crime that was sporadically mentioned during the House Intelligence hearings was obstruction of justice or obstruction of Congress. Once again, with only a few days to prepare this testimony and with no public report on the specific allegations, my analysis remains mired in uncertainty as to any plan to bring such a claim to the foundational evidence for the charge. Most of the references to obstruction have been part of a Ukraine-based impeachment plan that does not include any past alleged crimes from the Russian investigation. I will therefore address the possibility of a Ukraine-related obstruction article of impeachment. However, as I have previously written, I believe an obstruction claim based on the Mueller Report would equally at odds with the record and the controlling case law. The use of an obstruction theory from the Mueller Report would be unsupportable in the House and unsustainable in the Senate. Once again, the lack of information (just weeks before an expected impeachment vote) on the grounds for impeachment is both concerning and challenging. It is akin to being asked to diagnose a patient’s survivability without knowing his specific illness.

Obstruction of justice is a more broadly defined crime than bribery and often overlaps with other crimes like witness tampering, subornation, or specific acts designed to obstruct a given proceeding. There are many federal provisions raising forms of obstruction that reference parallel crimes. Thus, influencing a witness is a standalone crime and also a form of obstruction under 18 U.S.C. 1504. In conventional criminal cases, prosecutions can be relatively straightforward, such as cases of witness intimidation under 18 U.S. 1503. Of course, this is no conventional case. The obstruction claims leveled against President Trump in the Ukrainian context have centered on two main allegations. First, there was considerable discussion of the moving of the transcript of the call with President Zelensky to a classified server as a possible premeditated effort to hide evidence. Second, there have been repeated references to the “obstruction” of President Trump by invoking executive privileges or immunities to withhold witnesses and documents from congressional committees. In my view, neither of these general allegations establishes a plausible case of criminal obstruction or a viable impeachable offense.

In the Mueller report, Assistant Attorney General found no cognizable case was presented for an allegation of obstruction of justice. Many members of this Committee heralded the selection of Rosenstein as a consummate and apolitical professional who was responsible for the appointment of the Special Counsel. He reached this conclusion on the record sent by Mueller and, most importantly, the controlling case law. As with the campaign finance allegation discussed in this testimony, an article based on obstruction in the Russian investigation would seek the removal of a President on the basis of an act previously rejected as a crime by the Justice Department. Many of us have criticized the President for his many comments and tweets on the Russian investigation. However, this is a process that must focus on impeachable conduct, not imprudent or even obnoxious conduct.

The various obstruction provisions generally share common elements. 18 U.S.C. § 1503, for example, broadly defines the crime of “corruptly” endeavoring “to influence, obstruct or impede the due administration of justice.” This “omnibus” provision, however, is most properly used for judicial proceedings such as grand jury investigations, and the Supreme Court has narrowly construed its reach. There is also 18 U.S.C. § 1512(c), which contains a “residual clause” in subsection (c)(2), which reads:

(c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].

This residual clause has long been the subject of spirited and good-faith debate, most recently including the confirmation of Attorney General Bill Barr. The controversy centers on how to read the sweeping language in subsection (c)(2) given the specific listing of acts in subsection (c)(1). It strains credulity to argue that, after limiting obstruction with the earlier language, Congress would then intentionally expand the provision beyond recognition with the use of the word “otherwise.” For that reason, it is often argued that the residual clause has a more limited meaning of other acts of a similar kind. As with the bribery cases, courts have sought to maintain clear and defined lines in such interpretations to give notice of citizens as to what is criminal conduct under federal law. The purpose is no less relevant in the context of impeachments.

The danger of ambiguity in criminal statutes is particularly great when they come into collision with constitutional functions or constitutional rights like free speech.

Accordingly, federal courts have followed a doctrine of avoidance when ambiguous statutes collide with constitutional functions or powers. In United States ex rel. Attorney General v. Delaware & Hudson Co., the Court held that “Under that doctrine, when ‘a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’” This doctrine of avoidance has been used in conflicts regarding proper the exercise of executive powers. Thus, when the Supreme Court considered the scope of the Federal Advisory Committee Act (“FACA”) it avoided a conflict with Article II powers through a narrower interpretation. In Public Citizen v. U.S. Department of Justice, the Court had a broad law governing procedures and disclosures committees, boards, and commissions. However, when applied to consultations with the American Bar Association regarding judicial nominations, the Administration objected to the conflict with executive privileges and powers. The Court adopted a narrow interpretation: “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” These cases would weigh heavily in the context of executive privilege and the testimony of key White House figures on communications with the President.

 

There is no evidence that President Trump acted with the corrupt intent required for obstruction of justice on the record created by the House Intelligence Committee. Let us start with the transfer of the file. The transfer of the transcript of the file was raised as a possible act of obstruction to hide evidence of a quid pro quo. However, the nefarious allegations behind the transfer were directly contradicted by Tim Morrison, the former Deputy Assistant to the President and Senior Director for Europe and Russia on

the National Security Council. Morrison testified that he was the one who recommended that the transcript be restricted after questions were raised about President Trump’s request for investigations. He said that he did so solely to protect against leaks and that he spoke to senior NSC lawyer John Eisenberg. When Morrison learned the transcript was transferred to a classified server, he asked Eisenberg about the move. He indicated that Eisenberg was surprised and told him it was a mistake. He described it as an “administrative error.” Absent additional testimony or proof that Morrison has perjured himself, the allegation concerning the transfer of the transcript would seem entirely without factual support, let alone legal support, as a criminal obstructive act.

Most recently, the members have focused on an obstruction allegation centering on the instructions of the White House to current and former officials not to testify due to the expected assertions of executive privilege and immunity. Notably, the House has elected not to subpoena core witnesses with first-hand evidence on any quid pro quo in the Ukraine controversy. Democratic leaders have explained that they want a vote by the end of December, and they are not willing to wait for a decision from the court system as to the merits of these disputes. In my view, that position is entirely untenable and abusive in an impeachment. Essentially, these members are suggesting a president can be impeached for seeking a judicial review of a conflict over the testimony of high-ranking advisers to the President over direct communications with the President. The position is tragically ironic. The Democrats have at times legitimately criticized the President for treating Article II as a font of unilateral authority. Yet, they are now doing the very same thing in claiming Congress can demand any testimony or documents and then impeach any president who dares to go to the courts. Magnifying the flaws in this logic is the fact that the House has set out one of the shortest periods in history for this investigation—a virtual rocket docket for impeachment. House leaders are suggesting that they will move from notice of an alleged impeachable act at the beginning of September and adopt articles of impeachment based on controversy roughly 14 weeks later. On this logic, the House could give a president a week to produce his entire staff for testimony and then impeach him when he seeks review by a federal judge.

As extreme as that hypothetical may seem, it is precisely the position of some of those advancing this claim. In a recent exchange on National Public Radio with former Rep. Liz Holtzman, I raised the utter lack of due process and fairness in such a position.⁷⁴ Holtzman, one of the House Judiciary Committee members during the Nixon impeachment, insisted that a president has no right to seek judicial review and that he must turn over everything and anything demanded by Congress. Holtzman insisted that the position of her Chairman, Peter Rodino, was that the House alone dictates what must be produced. That is a position this Committee should not replicate. This returns us to the third article of impeachment against Nixon discussed earlier. That article stated:

“In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives… [i]n all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.”

Once again, I have always been critical of this article. Nixon certainly did obstruct the process in a myriad of ways, from witness tampering to other criminal acts. However, on the critical material sought by Congress, Nixon went to Court and ultimately lost in his effort to withhold the evidence. He had every right to do so. On July 25, 1974, the Court ruled in United States v. Nixon that the President had to turn over the evidence. On August 8, 1974, Nixon announced his intention to resign. Notably, in that decision, the Court recognized the existence of executive privilege—a protection that requires a balancing of the interests of the legislative and executive branches by the judicial branch. The Court ruled that “[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Yet, the position stated in the current controversy is perfectly Nixonian. It is asserting the same “absolute, unqualified” authority of Congress to demand evidence while insisting that a president has no authority to refuse it. The answer is obvious. A President cannot “substitute[] his judgment” for Congress on what they are entitled to see and likewise Congress cannot substitute its judgment as to what a President can withhold. The balance of those interests is performed by the third branch that is constitutionally invested with the authority to review and resolve such disputes.

The recent decision by a federal court holding that former White House Counsel Don McGahn must appear before a House committee is an example of why such review is so important and proper. I criticized the White House for telling McGahn and others not to appear before Congress under a claim of immunity. Indeed, when I last appeared before this Committee as a witness, I encouraged that litigation and said I believed the Committee would prevail. Notably, the opinion in Committee on the Judiciary v. McGahn rejected the immunity claims of the White House but also reaffirmed “the Judiciary’s duty under the Constitution to interpret the law and to declare government overreaches unlawful.” The Court stressed that “the Framers made clear that the proper functioning of a federal government that is consistent with the preservation of constitutional rights hinges just as much on the intersectionality of the branches as it does on their separation, and it is the assigned role of the Judiciary to exercise the adjudicatory power prescribed to them under the Constitution’s framework to address the disputed legal issues that are spawned from the resulting friction.”

The position of this Committee was made stronger by allowing the judiciary to rule on the question. Indeed, that ruling now lays the foundation for a valid case of obstruction. If President Trump defies a final order without a stay from a higher court, it would constitute real obstruction. Just yesterday, in Trump v. Deutsche Bank, the United States for the Second Circuit became the latest in a series of courts to reject the claims made by the President’s counsel to withhold financial or tax records from Congress. The Court reaffirmed that such access to evidence is “an important issue concerning the investigative authority.” With such review, the courts stand with Congress on the issue of disclosure and ultimately obstruction in congressional investigations. Moreover, such cases can be expedited in the courts. In the Nixon litigation, courts moved those cases quickly to the Supreme Court. In contrast, the House leaderships have allowed two months to slip away without using its subpoena authority to secure the testimony of critical witnesses. The decision to adopt an abbreviated schedule for the investigation and not to seek to compel such testimony is a strategic choice of the House leadership. It is not the grounds for an impeachment.

If the House moves forward with this impeachment basis, it would be repeating the very same abusive tactics used against President Andrew Johnson. As discussed earlier, the House literally manufactured a crime upon which to impeach Johnson in the Tenure in Office Act. This was a clearly unconstitutional act with a trap-door criminal provision (transparently referenced as a “high misdemeanor”) if Johnson were to fire the Secretary of War. Congress created a crime it knew Johnson would commit by using his recognized authority as president to pick his own cabinet. In this matter, Congress set a

short period for investigation and then announced Trump would be impeached for seeking, as other presidents have done, judicial review over the demand for testimony and documents.

The obstruction allegation is also undermined by the fact that many officials opted to testify, despite the orders from the President that they should decline. These include core witnesses in the impeachment hearings, like National Security Council Director of European Affairs Alexander Vindman, Ambassador William Taylor, Ambassador Gordon Sondland, Deputy Assistant Secretary of State George Kent, Acting Assistant Secretary of State Philip Reeker, Under Secretary of State David Hale, Deputy Associate Director of the Office of Management and Budget Mark Sandy, and Foreign Service Officer David Holmes. All remain in federal service in good standing. Thus, the President has sought judicial review without taking disciplinary actions against those who defied his instruction not to testify.

If this Committee elects to seek impeachment on the failure to yield to congressional demands in an oversight or impeachment investigation, it will have to distinguish a long line of cases where prior presidents sought the very same review while withholding witnesses and documents. Take the Obama administration position, for instance, on the investigation of “Fast and Furious,” which was a moronic gunwalking operation in which the government arranged for the illegal sale of powerful weapons to drug cartels in order to track their movement. One such weapon was used to murder Border Patrol Agent Brian Terry, and Congress, justifiably so, began an oversight investigation. Some members called for impeachment proceedings. But President Obama invoked executive privilege and barred essential testimony and documents. The Obama Administration then ran out the clock in the judiciary, despite a legal rejection of its untenable and extreme claim by a federal court. During its litigation, the Obama Administration argued the courts had no authority over its denial of such witnesses and evidence to Congress. In Committee on Oversight & Government Reform v. Holder,⁸⁴ Judge Amy Berman Jackson, ruled that “endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers.” The position of the Obama Administration was extreme and absurd. It was also widely viewed as an effort to run out the clock on the investigation. Nevertheless, President Obama had every right to seek judicial review in the matter and many members of this very Committee supported his position.

Basing impeachment on this obstruction theory would itself be an abuse of power. . . by Congress. It would be an extremely dangerous precedent to set for future presidents and Congresses in making an appeal to the Judiciary into “high crime and misdemeanor.”