Obstruction of justice in plain sight: the ‘road map’ to a grand jury indictment and impeachment

We are officially a Banana Republic under Donald Trump. Tin-pot dictators in Banana Republics attack the freedom of the press, replacing a free press with a state-run propaganda machine, and they prosecute and imprison their political opponents to secure their autocratic dictator status. This is what Donald Trump badly wants to do. He wants to corrupt the Department of Justice and the rule of law to illegally prosecute and imprison his political opponents.

The New York Times reports, Trump Wanted to Order Justice Dept. to Prosecute Comey and Clinton:

President Trump told the White House counsel in the spring that he wanted to order the Justice Department to prosecute two of his political adversaries: his 2016 challenger, Hillary Clinton, and the former F.B.I. director James B. Comey, according to two people familiar with the conversation.

The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.

The encounter was one of the most blatant examples yet of how Mr. Trump views the typically independent Justice Department as a tool to be wielded against his political enemies. It took on additional significance in recent weeks when Mr. McGahn left the White House and Mr. Trump appointed a relatively inexperienced political loyalist, Matthew G. Whitaker, as the acting attorney general.

It is unclear whether Mr. Trump read Mr. McGahn’s memo or whether he pursued the prosecutions further.

Yes, he did, as this report later discloses:

It is not clear which accusations Mr. Trump wanted prosecutors to pursue. He has accused Mr. Comey, without evidence, of illegally having classified information shared with The New York Times in a memo that Mr. Comey wrote about his interactions with the president. The document contained no classified information.

Mr. Trump’s lawyers also privately asked the Justice Department last year to investigate Mr. Comey for mishandling sensitive government information and for his role in the Clinton email investigation. Law enforcement officials declined their requests. Mr. Comey is a witness against the president in the investigation by the special counsel, Robert S. Mueller III.

In addition, all but one of former FBI Director James Comey’s corroborating witnesses — all fact witnesses in the investigation by the special counsel, Robert S. Mueller III — have been fired or forced out of their jobs. This supports a charge for retaliating against a witness, victim, or an informant (18 U.S.C. § 1513).

Mr. Trump has grown frustrated with Mr. Wray for what the president sees as his failure to investigate Mrs. Clinton’s role in the Obama administration’s decision to allow the Russian nuclear agency to buy a uranium mining company. … But no evidence has emerged that those donations influenced the American approval of the deal.

Mr. Trump repeatedly pressed Justice Department officials about the status of Clinton-related investigations, including Mr. Whitaker when he was the chief of staff to Attorney General Jeff Sessions, according to a person with direct knowledge of the conversations. CNN and Voxearlier reported those discussions.

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[T]he president has continued to privately discuss the matter, including the possible appointment of a second special counsel to investigate both Mrs. Clinton and Mr. Comey, according to two people who have spoken to Mr. Trump about the issue. He has also repeatedly expressed disappointment in the F.B.I. director, Christopher A. Wray, for failing to more aggressively investigate Mrs. Clinton, calling him weak, one of the people said.

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Mr. Trump’s frustrations about Mr. Comey and Mrs. Clinton were a recurring refrain, a former White House official said. “Why aren’t they going after” them?, the president would ask of Justice Department officials.

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Perhaps more than any president since Richard M. Nixon, Mr. Trump has been accused of trying to exploit his authority over law enforcement. Witnesses have told the special counsel’s investigators about how Mr. Trump tried to end an investigation into an aide, install loyalists to oversee the inquiry into his campaign and fire Mr. Mueller.

In addition, Mr. Trump has attacked the integrity of Justice Department officials, claiming they are on a “witch hunt” to bring him down.

More significant, Mr. Mueller is investigating whether the president tried to impede his investigation into whether any Trump associates conspired with Russia’s campaign to sow discord among the American electorate during the 2016 presidential race.

This is clear evidence of corrupt intent for Obstruction of Justice:

Obstruction of justice is defined by federal statute as any “interference with the orderly administration of law and justice” and governed by 18 U.S.C. §§ 1501-1521. Federal code identifies more than 20 specific types of obstruction, including “Obstruction of proceedings before departments, agencies, and committees” (18 U.S.C. § 1505), the specific code section cited in the Nixon and Clinton articles of impeachment.

The crime can take any number of forms, whether it’s bribery, tampering with evidence, lying to investigators, abusing one’s power, or some other act intended to impede a criminal investigation. The federal obstruction of justice statute is written broadly and focuses more on the effect (or intended effect) of a particular action rather than the specific act itself. Therefore, seemingly innocuous acts could be construed as criminal activity if they have the intended effect of impeding justice.

The elements required for a conviction on an obstruction of justice charge differ slightly by code section. For instance, prosecutors must prove the following elements for a conviction under section 1503 of the federal statute (influencing or injuring an officer or juror):

1. There was a pending federal judicial proceeding;
2. The defendant knew of the proceeding; and
3. The defendant had corrupt intent to interfere with or attempted to interfere with the proceeding.

[T]he prosecution need not prove any actual obstruction — the defendant’s attempt to obstruct is enough. The element of intent, which is central to such cases, is also usually the most difficult to prove; although memos, phone calls, and recorded conversations may be used as evidence to establish this.

Jim Baker, former FBI General Counsel and one of James Comey’s corroborating witnesses, and thus a fact witness in the investigation by the special counsel, takes a deep-dive look into obstruction of justice in Article II of the Articles of Impeachment against Richard Nixon, which are remarkably similar with parallels to the acts described by the New York Times above. What the Watergate ‘Road Map’ Reveals about Improper Contact between the White House and the Justice Department:

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials. The interactions cited in the road map occurred during March and April 1973. During that period, the president and his subordinates at the White House had contacts with Attorney General Richard Kleindienst and Henry E. Petersen, who was assistant attorney general for the Justice Department’s Criminal Division and is the official quoted above regarding the interaction with President Nixon. From June 1972 to May 1973, Petersen supervised the Watergate investigation conducted by the U.S. Attorney’s Office in Washington, D.C., and the Federal Bureau of Investigation (FBI). President Nixon was in touch with him frequently about the investigation, his future career and other matters along the way.

[Petersen’s] close contacts with President Nixon over a pending investigation that—at that time—implicated the president’s own staff may raise eyebrows regarding Justice Department contacts with the White House on certain types of investigative matters.

In particular, we focused on the facts that the road map and related documents reveal regarding the nature and scope of the interactions between President Nixon and Petersen.

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the special prosecutor’s office sent the House Judiciary Committee a memorandum, dated June 24, 1974, focused on “facts, inferences and theories that demonstrate that beginning no later than March 21, 1973, the President joined an ongoing criminal conspiracy to obstruct justice, obstruct a criminal investigation, and commit perjury (which included . . . obtaining information from the Justice Department to thwart its investigation). . . .” Moreover, the special prosecutor’s office focused specifically on the Nixon-Petersen interactions in support of its conclusions about the president’s culpability:

The available evidence supports charges that the President participated in a conspiracy to violate certain . . . statutes . . . and . . . would be liable both as a principal and on a theory of vicarious liability for additional substantive offenses.

For example, there is evidence that the President conspired with others under 18 U.S.C. 371 to defraud the United States and to commit violations of certain federal criminal laws, to wit:

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—obstruction of a criminal investigation, 18 U.S.C. 1510 (including his personal endeavor by means of both bribery and misrepresentation—the latter especially with respect to the President’s conversations with Henry Petersen—to delay and prevent communication of information to the United States Attorneys and to Henry Petersen).

As a result, the road map’s references to President Nixon’s interactions with Petersen—the person who was heading the investigation—take on a different and more nefarious meaning. Those interactions must be understood within the larger context of the president’s knowledge of the facts regarding Watergate at the time that he was in contact with Petersen. In other words, when the president sought information from Petersen, provided his views to Petersen on the various matters that they discussed, and discussed Petersen’s future, he was not merely exercising his powers under Article II of the Constitution to supervise the executive branch and trying to get the facts necessary to do so; the president of the United States was also acting as a criminal co-conspirator trying to obstruct lawful investigative activities of the Justice Department.

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Notably, it appears that Petersen genuinely did not understand fully President Nixon’s role in the Watergate affair at the time he consented to have the numerous interactions with the president that are outlined in the road map and related documents. A fair assessment of the role that Petersen played would require additional research and is beyond the scope of this post. So we make no effort to pass judgment on Petersen or his actions.

What follows is an attempt to report on a limited set of facts gleaned from our review of the road map, its attachments and related documents that we find interesting. These documents detail the direct contacts between the president and the top Justice Department officials responsible for an investigation of his White House—and ultimately of him—and why such contacts were so pernicious and dangerous for all involved.

Here is what the road map itself reports about the Nixon-Kleindienst-Petersen interactions (the paragraph numbers are from the document):

16. On or about March 27, 1973, the President instructed John Ehrlichman to contact Richard Kleindienst; on or about March 28, 1973, Ehrlichman had a telephone conversation with Kleindienst in which Ehrlichman told Kleindienst that the President’s “best information” was that no one in the White House had “prior knowledge” of the Watergate break-in, but that serious questions were being raised about [former Attorney General and CRP Chairman] John Mitchell, and the President wished to have Kleindienst communicate privately with the President if Kleindienst obtained any information concerning Mitchell.

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19. On Sunday, April 15, 1973, Richard Kleindienst and Henry Petersen had a meeting with the President at their request and advised the President of information in possession of the prosecutors obtained in part from the cooperation of John Dean and Jeb Magruder; Kleindienst and Petersen urged the President to fire Haldeman and Ehrlichman immediately because of their implication in the Watergate matter.

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21. At or about 11:45 p.m. on April 15, 1973, the President had a telephone conversation with Henry Petersen.

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24. From on or about April 15, 1973, to on or about April 28, 1973, the President had numerous conversations with Henry Petersen.

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26. On or about April 18, 1973, the President had a conversation with Henry Petersen during which the President instructed Petersen not to investigate the break-in at the offices of Dr. Daniel Ellsberg’s psychiatrist that occurred in September 1971.

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51. On April 17, 1973, the President said in a public statement that he had met on April 15, 1973, with Richard Kleindienst and Henry Petersen “to review the facts which had come to me in my investigation . . . .”

52. On August 22, 1973, the President said at a news conference, in response to the question why he did not immediately turn over information concerning criminal wrong-doing to the prosecutors in March and April 1973, that he assumed that John Dean in March was telling Henry Petersen everything that Dean was telling the President; the President implied that he assumed the same about John Ehrlichman after March 30, 1973.

53. On August 15, 1973, the President said in a public statement that the “allegations” that were made to him on March 21, 1973, “were made in general terms, . . . and they were largely unsupported by details or evidence,” but that by April 15 “the fragmentary information I had been given on March 21st had been supplemented in important ways, particularly by Mr. Ehrlichman’s report to me on April 14th, by the information Mr. Kleindienst and Mr. Petersen gave me on April 15th, and by independent inquiries I had been making on my own.”

Each of these paragraphs in the road map cites to underlying documents—such as grand jury testimony, meeting notes and transcripts of recordings of conversations—in support of the factual assertions made. Some of those supporting documents provide interesting insights on the road map material.

Archibald Cox and another prosecutor interviewed Petersen regarding this interaction with President Nixon…

Petersen also testified that he discussed with the president aspects of investigative strategy, including whether prosecutors should grant immunity to John Dean and other officials in exchange for their testimony…

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material … Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

According to one of the documents that the National Archives released with the road map—a report from the Watergate Task Force dated Feb. 7, 1974—on March 21, 1973, in a meeting that was tape-recorded John Dean told the president that Dean “kept abreast of what the FBI and Grand Jury were doing, primarily through Petersen.”

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The report also states that during the time period that the president had conversations about the investigation with Petersen … The report does not confirm that the president actually passed on such information to Haldeman, Ehrlichman or their attorneys.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.” Petersen dismissed such statements as “unadulterated flattery” that did not impact how he conducted himself.

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Petersen said that he did not construe these conversations to mean, “‘You and I stick together, buddy. I’ll make a big man of you.’”

President Nixon asked Petersen whether he was interested in serving as director of the FBI.

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Petersen testified that he also had [an] exchange with the president about information that the investigators had learned from John Dean that G. Gordon Liddy and E. Howard Hunt—both of whom were involved in the conspiracy to break into the Democratic National Committee offices at the Watergate building—had also broken into the office of the psychiatrist of Daniel Ellsberg (who had disclosed the “Pentagon Papers” to the press):

[The President] said, “What else is new?”, and then I dropped the next bombshell. It was that Dean had informed [Assistant United States Attorney Earl] Silbert that Liddy and Hunt and company had burglarized Dr. Fielding’s office who was Ellsberg’s psychiatrist.

The President said, “I know about that. That’s a national security matter. Your mandate is Watergate. You stay out of that.”

I said, “Well, I have caused a check to be made, and we don’t have any information of that nature in the case.” I said, “Do you know where there is such information?”, and he said no.

He said, “There’s nothing you have to do.” Then I got off the phone.

I called Mr. Silbert and told him what the President had said. I guess he was kind of upset about it. He just kind of grunted or groaned. I said, “Well, Earl, that’s it.”

Petersen then told the deputy assistant attorney general who supervised the Criminal Division’s Internal Security Section (the predecessor to the National Security Division’s Counterintelligence and Export Control Section), which was investigating the Ellsberg matter, “to forget about it.” The House Judiciary Committee referenced the burglary into the offices of Dr. Fielding in Article II of the Articles of Impeachment that it voted out of committee on July 27, 1974.

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On July 11, 1974, the House Judiciary Committee publicly released voluminous information it had accumulated in its inquiry into Watergate, and the New York Times published much of it. The material provides additional detail on interactions between the president and other White House officials, on the one hand, and Petersen on the other. One paragraph of the Judiciary Committee material states in part:

From 4:31 to 4:35 P.M. on April 27 [1973], the President had a telephone conversation with Petersen during which the President asked if Petersen had any information that would reflect on the President. Petersen said no. At the President’s request, Petersen met with the President from 5:37 to 5:43 P.M. and from 6:04 to 6:48 P.M. The President again asked if there was adverse information about the President. Petersen said he was sure that the prosecutors did not have that type of information.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

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How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

The parallels to Donald Trump are unmistakable, and there is clear precedent and a “road map” to a grand jury indictment and Articles of Impeachment for obstruction of justice.

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