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Originally Posted by trobesmom
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The authors of your first article ultimately punt on making an obstruction case so I'm not going to bother refuting what they don't conclude in the first place. Your third source punts on the question right from the headline so again I'll leave them to it. Instead I'll move right on to the video in your second link which lacks the ambivalence of the first two and categorically claims there's a slam-dunk case.
The video opens by laying a foundation with a false premise that "any act that someone does to interfere with an investigation being conducted by an official" of the DOJ, members of Congress, etc. For starters that's a ridiculously broad definition that would implicate anyone in the chain of command in the FBI or DOJ itself for trying to make any case against carrying out a prosecution. So let's look at the actual statute Trump is most often accused of violating:
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress . . . shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
So the obvious question I have is this: if Comey repeatedly told Trump he wasn't the target of the investigation, where's the corrupt intent?
With their false foundational premise laid down, the first claim the video makes is Trump tried to influence the investigation of Michael Flynn. First of all, that claim was shot down by Comey himself when he testified before the Senate Intelligence Committee that neither Trump, nor anyone in his administration, nor anyone in the DOJ did anything to try to stop the Flynn investigation. Second, if Trump had wanted to influence or outright stop the Flynn investigation, he had full legal and Constitutional authority to do so. You know who else said this besides me? James Comey, in his testimony before the Committee.
The DOJ has prosecutorial discretion to determine what charges it will (with adequate predicate) or won't bring against any potential defendant; the FBI has full discretion to determine who it will (with adequate predicate) or won't investigate; and the President, being the executive and having full authority over both agencies, can put a stop to any prosecution or investigation he wants right up to and including complete pardon power. In fact he had the Constitutional authority to put a full stop to the entire Russia/collusion investigation if he wanted to, never mind putting an end just to the Flynn portion of it.
Their second charge is that Trump obstructed justice by firing Comey. Again, as the executive he has full legal and Constitutional power to fire anyone who works at his pleasure. As such he had plenary authority to fire Comey for any reason or no reason at all. You know how I know this? Because Comey himself said so, right after he was fired. Even if Trump HAD fired Comey for not backing off the Flynn investigation (which the video claims with no evidence whatsoever), he was Constitutionally entitled to do so.
The third claim is "he tried to actively prevent Mueller from becoming the special counsel and then ultimately to be removed." You know how he could have removed Mueller? By firing him. He didn't have to "try" to do anything. He could have picked up the phone, called him, and said "you're fired." The idea a President commits a crime by trying, but somehow not succeeding, in exercising his explicit Constitutional authority as the President is embarrassingly ludicrous.
The fourth claim made in the video is that he "asked a witness to lie to create a false record." Now here they FINALLY got Trump on a possible obstruction charge -- that is, until you read the Mueller report and then go back and parse these carefully chosen words. The "witness" in question was not asked to lie in "any pending proceeding before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress" nor to create a false record in any such proceeding, nor was he at the time a witness in any such proceeding. He was allegedly asked to lie TO THE PRESS. And while that's a crappy reflection on Trump's character, it's not a crime. If it were, every president would be vulnerable to serving jail time.
The fifth claim is he tried to alter or influence the testimony of Flynn and Manifort by offering them pardons. The only evidence they offer for this claim is that he never took pardons off the table. They offer no evidence of direct or indirect communication, or any attempt to do so, with Flynn or Manifort to try to coach or alter their testimony -- just the fact that he didn't categorically refuse to pardon them. That's it.
So to summarize... Trump allegedly obstructed justice by either firing or "trying" to fire people he had plenary legal authority to fire, he tried to have a surrogate lie to the media, and oh yeah, he "dangled" pardons in front of Flynn and Manifort -- not by virtue of telling them there may be pardons waiting for them, but by declining to take pardons off the table when asked about it by the press.
Yeah, that's a really solid case there.
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Originally Posted by trobesmom
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I never said it had to be successful in actually thwarting justice to be criminal. What I said is a) there is no such thing as "attempted obstruction of justice;" therefore b) either you have committed the offense of obstruction of justice or you haven't. "Attempted obstruction of justice" isn't a thing. And firing (or blustering about firing) your own subordinates because they pi$s you off is not obstruction of justice.
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