This is weird, interesting and provocative, both on the question of whether Robert Mueller could or should have recommended an indictment of Donald Trump for obstruction of justice, and on the question of Fox News’ commitment to honesty or objectivity. It’s also slightly confusing.
Eventually, it drags Alan Dershowitz, the famous trial lawyer and civil libertarian, into the picture. And finally, it raises the matter of what might be called Trump Derangement Syndrome.
But it starts with retired Judge Andrew Napolitano, who is a regular Fox News analyst on legal matters. He has been a Donald Trump admirer, and the feeling has been mutual. Trump reportedly told Napolitano that he was under consideration for the Supreme Court appointment that ultimately went to Brett Kavanaugh.
Apparently, after the Mueller report came out, Napolitano developed a strong conclusion that Robert Mueller’s team had found significant evidence that Donald Trump could and should be charged with obstruction of justice.
As you know, Mueller ultimately did not seek or explicitly recommend such a charge, but he did state in his report that the evidence “did not exonerate” Trump on obstruction. There’s been a lot of discussion about why Mueller took that position, including that Attorney General William Barr believes that it’s impossible for a president to be charged with obstruction of justice, except perhaps by Congress in an impeachment case. (Obstruction was one of the charges against Richard Nixon on which he was facing impeachment, and the House Judiciary Committee had voted in favor of such a charge, but Nixon resigned before the matter came to a vote in the full House.)
Fox has not to date, given Napolitano air time to explain why he believes Trump obstructed justice. Perhaps that’s consistent with your view of Fox’s willingness to generally serve as a biased cheerleader for Trump. Time will tell whether Fox will fall out of love with Napolitano over his heresy.
But here’s the weird thing that I stumbled on thanks to this Slate piece. Fox also provides space on its online platform for Napolitano to give his views of legal matters under the title of “Judge Napolitano’s Chambers.” And he used it, to lay out, in eye-watering detail, his view that Trump obstructed justice.
I’m not a former judge and I don’t have a law degree. Relying on my lay understanding of what obstruction of justice is, it looks to me as if Trump was working to sabotage the investigation, which makes him look like he has much to hide and took steps to hide it.
But a separate crime? My opinion is worthless. As you know, Trump conveniently appointed Barr as attorney general, and Barr conveniently believes that, as Nixon once said, “if the president does it, that means that it’s not illegal.”
(In fairness to Nixon, I should add that when he said that, he meant that nothing the president does in furtherance of the U.S. national security interests can be illegal. Barr apparently believes that, since the president is the boss of the U.S. Department of Justice, he cannot obstruct justice.)
In a segment of “Judge Napolitano’s Chambers” embedded below, Napolitano explored this. He defines what constitutes the crime of obstruction, goes over what the Mueller evidence shows Trump did in various efforts to impede the investigation into his Russian ties, and makes a slam dunk case that those efforts had — in spades — the elements of obstruction of justice.
I’ll embed the video below. But here’s my transcription of the key section of Napolitano’s argument:
So when Mueller says the president of the United States did about 12 things to slow down, impede, negate or interfere with the criminal investigation of his campaign of or his former national security advisor Michael Flynn, that’s a serious allegation of criminal activity.
So when the president asked his former advisor K.T. McFarland… to write an untruthful letter to the file, knowing the government would subpoena it, that’s obstruction of justice.
When the president asked his former campaign manager Corey Lewandowski to get Mueller fired, that’s obstruction of justice.
When the president asked his then-White House counsel to get Mueller fired and then lie about it, that’s obstruction of justice.
When told Don McGann to go back to the special prosecutor and change his testimony, that’s obstruction of justice.
When he dangled a pardon in front of Michael Cohen in order to keep Cohen from testifying against him, that’s obstruction of justice
Why not charge him? Because the attorney general of the United States would have blocked such a charge. Because the attorney general is of the view that obstruction of justice can only occur if you’re interfering with a criminal investigation of yourself. But that’s not what the obstruction statute says. And that’s not what law enforcement believes. And that’s not what prosecutors do. Prosecutors prosecute people who interfere with government functions. And that’s what the president did by obstruction.
The legal case is clear to Napolitano. He goes on to argue that Trump doesn’t even have a moral argument, like that he was obstructing justice to save someone’s life or something: “But ordering them to break federal law to save him from the consequences of his own behavior, that is immoral, that is criminal, that is defenseless and that is condemnable.”
So Fox hasn’t allowed Napolitano to say this on the air, but they have allowed full video of it to run on run on their website, as part of Judge Napolitano’s Chambers, here:
[raw][/raw]
So that is a piece of evidence that the usually Fox-and-Trump-aligned Napolitano is willing to call them as he see them.
And puzzle number one (or maybe it’s number two, or two in one) is why Fox will let Napolitano say this in a video on their website, but not on the air.
As I mentioned, I don’t know whether Napolitano is right or wrong, but I found it interesting.
Then I discovered that Alan Dershowitz had publicly contradicted Napolitano’s view. His position is that Trump hasn’t obstructed justice, because to do so you have to go beyond your legitimate powers.
If you’re younger than me, maybe Dershowitz isn’t too big a name. But, for decades and decades he’s been a large figure in the pantheon of big-name American legal brains, a Harvard law professor, a brave defender of civil liberties, a prolific author and frequent guest on television. He considers himself a liberal, and I considered him one, too.
Now, at 80, Dershowitz is a Trump friend, apparently talks to Trump fairly often and, lo and behold, thinks the argument that Trump obstructed justice is a bum rap, for the reason mentioned just above.
In these increasingly tribal days, we expect people to stick with their tribe. Not that it’s desirable or admirable to say that what’s wrong is right, just because it suits the immediate needs of your tribe. It’s just that we expect it.
Maybe, at least in this instance, Napolitano and Dershowitz are rising above that expectation, and calling them as they see them. I’d kinda like to believe it. Do you believe it?
Erie, it doesn’t look to me like Dershowitz is rising above anything. He seems pretty impervious to the careful work of Mueller’s Volume II, showing multiple cases of Trump violating the obstruction statute.
Of course Fox yanked the video.
“In these increasingly tribal days, we expect people to stick with their tribe.”
Two-thirds of us are not tribal. We follow democratic values and our goal is a society that will work for everyone. One-third of us have been cultivated to be authoritarian followers, herded into a tribal mentality where if something harms the other two-thirds, it works for us.
Yes, there is virulent tribalism, but we don’t expect “people” to stick with their tribe. We expect Trump supporters to stick with their tribe. Imprecision is, again, Both Siderism.
I second Chuck Holtman’s comment. It’s become increasingly evident to me that to be in favor democratic values and the rule of law is to be reviled as a “liberal” to many people for whom these values conflict with their pre-formed ideology and world view.
I’m amazed that TV judge and Trump fan Napolitano can see very clearly that the President has violated the law and is only not being prosecuted because his Attorney General misconstrues the obstruction of justice law. This tells me that the Attorney General also has abdicated his duty and violated his own oath of office. Good for Napolitano that his legal acumen has not been impaired by his Trumpian bias.
Alan Dershowitz is not really a liberal but also just plays one on TV when it suits him in his ceaseless quest to be in the limelight. He is a prolific author but I’ve never thought of him as a serious legal scholar like, e.g. Lawrence Tribe, Ronald Dworkin or even Richard Posner.
Dershowitz was known for his scholarship on the intersection of law and psychiatry, but that sort of thing doesn’t get you invited to pontificate on TV.
Some people are older at 80 than others.
I think that he is past his prime.
‘
The video still still seems to play, at least is you access it from this post. It’s pretty strong stuff, for Fox personality.
Pretty strong stuff from a liberal Harvard Law Prof.
As to the puzzle of why Fox let the judge’s piece run, you might consider this possibility: that management just wasn’t paying attention until the piece went out, and then they worried that pulling would just draw more attention to the piece.
Dershowitz’s migration from the liberal camp is marked in part by his amazingly vicious (and amazingly trite) rejoinder to the Mearsheimer and Walt report on the Israel lobby in the U.S. (Yes, Virginia, there was a China Lobby, and later there was …) See e.g. https://www.theguardian.com/books/2007/sep/29/politics
BTW movie fans, do you remember the portrayal of him in the movie, “Reversal of Fortune,” based on his own book of the same title?
First, to think that there’s only a “Trump tribe and there’s no corresponding tribe on the left is pretty naive. Progressives themselves constitute a tribe.
Second, I guess I’m just not smart enough to understand Barr’s view of obstruction. The Justice Dept. isn’t Trump’s Justice Department, it’s the country’s Justice Department. Its role is to administer justice and that can include illegal behavior committed by its own.
Barr’s view is simple:
Trump is King and can do anything he wants to; by definition nothing he does can be illegal since he is the law. The Founders are spinning in their graves.
And just out…
Mueller disagrees with Barr’s interpretation of his findings.
To state that tribalism is a feature essentially of the Republican base is not to be naïve. Simplified (necessarily so, for the forum), but not naïve.
What is – well – not naïve, but certainly lazy and incurious, is to operate from, and never think to inspect, the assumption that left and Right perceive the world thru the same set of constructs but simply end up holding opposing views on either side of a “center.”
The Republican party has spent 50 years building its base specifically from those susceptible to the authoritarian appeal, those whose view of the world is fear-based and black-and-white. The relentless messaging to the base over these decades has been that of a series of enemies, internal and external, against which the base must be protected and on whom suffering must be visited.
In other words, the Republican party has selected for and cultivated tribalism as the defining characteristic of its base, leaving those not susceptible to the authoritarian appeal to migrate elsewhere. The asymmetry of tribalism, then, is almost tautological.
Lazy, incurious, and deeply injurious, as it profoundly obstructs diagnosing the grave condition in which our society finds itself.
Unless the GOP in the Senate magically changes, Trump will remain in office for his term. Live with it. Adjust.
New polling, FWIW…
In 2020, would you vote for Trump?
28% say definitely yes
14% say maybe
55% say definitely not
https://www.langerresearch.com/wp-content/uploads/1205a3Trump2020.pdf
Last election, 48% said yes.
Trump will be his own worst campaigner. Let him flail and spout. Let the GOP play Igor (yes, master…). It’ll be their downfall, too.
Investigate too, but make sure to have the results well before election date. Let his buddies try their pathetic refusal to testify. Their unconstitutional autocracy will become more obvious.
This. The dirty laundry needs to be aired to the extent it can be. And where it can’t point out that obstruction is a crime. But don’t move too fast–there should be no real impeachment because a survival of a Senate vote on conviction would make him a dirty hero. Also, after Trump gets done being president, ALL THE OLD RULES APPLY. A jury of his “peers” in the real world might not be as excited about how he got away with crimes…and they can’t.
Maybe it is Judge Andrew Napolitano’s way of saying he can no longer justify Trump and his daily nonsense. The longest serving “Republican” in the Iowa legislature just disowned the GOP because of Trump’s nonsense. The closer we get to the 2020 election there will be more defectors who have been hanging onto hope that Trump would become presidential. Human nature will only let a person put up with stupidity so long. The next election won’t be about the economy, climate change, GDP, deficits, healthcare, left vs right or the Mueller Report. The next election is going to be about one thing, The Conscience of America. Who and what do we want to be to ourselves and the rest of the world? Until we figure that out, we cannot move forward, but the rest of the world will be moving forward without us. The rest of the world has already had all of Trump they can stand. They have told us the US can no longer be trusted. God forbid anything major happens to our country, beyond Trump, but how could Trump ever lead our country as the electorate has no idea when to and when not to believe him. The 2020 election will only be about The Conscience of America.
On occasion I have heard that “obstruction of justice” refers to obstructing a crime investigation. Since the investigation showed that no crime was committed, can a person be charged with trying to prove that he/she was innocent?
Except in this case Trump was not trying to prove himself innocent, he was trying to block the investigation.
First, I don’t know how you get the idea that there was no crime committed here.
Second, “obstruction of justice” does not require a showing that there was an actual crime committed; in fact, some courts have held that there does not even need to be an ongoing investigation.
Firstly, the investigation did not show that no crime was committed. Rather, the Mueller Report concluded that the DOJ had a policy of not indicting a sitting POTUS & thus he (Mueller) was not bringing charges against Pres Trump. Not bringing charges is not the same thing as concluding no crime was committed.
Secondly, obstruction of justice does not require a root crime by the obstructor. For example, several crimes have been identified & criminals prosecuted by the Mueller investigation. Some pled guilty rather than going to trial. Flynn, Papadopolous, Stone, the lobbyist who’s name escapes me, Cohen, etc. Trump could be guilty of obstructing justice regarding those investigations without himself being complicit in the crimes for which those criminals were prosecuted. Make sense?
My internet lawyering says…the crime or act of willfully interfering with the process of justice and law especially by influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer or by furnishing false information in or otherwise impeding an investigation or legal process …
Impeding an investigation is obstruction of justice.
Now I realize that “obstruction of justice” does not refer to the President colluding with the Russians, which was the original inquiry for which the President was not prosecuted, it refers to all of hundreds of dealings (still increasing) swept into the enlarging investigation whether or not they had anything to do with the President and the Russians.
I now also know that if I am investigated for murder but never charged, I will still be a murderer since I would never be proven not guilty. How reassuring.
Lying to federal investigators is a crime in itself.
Stretch your mind back to a couple of Presidents ago–Clinton was impeached for lying about a personal legal sex act between adults.
Now expand your mind even further– think of illegal acts conducted by foreign adversaries in the aid of electing a President.
Try to understand the similarities and differences.
“I now also know that if I am investigated for murder but never charged, I will still be a murderer since I would never be proven not guilty. ”
Unless there is a hidden subtext to your comment (is this a signal that you have something you would like to get off your chest?), your comment makes absolutely no sense.
Just to get you up to speed on how criminal prosecutions work: the job of the prosecutor is to prove, beyond a reasonable doubt, that the defendant is guilty. The defendant does not have to “prove” that he is not guilty.
Well, that would be:
“Not guilty” as opposed to “innocent”
And is the “Not Guilty” decision was essentially based on “throwing sand in the umpires eyes” by constantly attacking, belittling and resisting the Special Prosecutor.
Scooter Libby went to prison for this and Patrick Fitzgerald, Special Prosecutor for the Valarie Plame case said exactly that:
“And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure what happened and somebody blocked their view.”
I think it is only a matter of time before more leave the tangle of the trumpian nest. The Mueller letter with held as it was by Barr is going to change minds in the coming week. Why did Barr not share that concern outright is a major flaw in his plan. There is only one explanation on the reason he did not share immediately. We know what that is. The public is just beginning to wrap it’s head around the outright deception. As people go through posting their reply, I would suggest they first look up or turn to a definition of the term “characterization.” That seems to be the word that pops from the Muller letter. If you can accept the definition then you have to ask yourself what Barr’s motivations were for engaging in the act.
The real tragedy here is that even a Fox news personality who works for a heavily pro-Trump news outlet is able to lay out a very strong and logical case for obstruction, but Mr. Mueller didn’t have the courage to call it obstruction himself – as he should of in order to defend the constitution and our democracy.
He did a fine job of laying out in great detail all the very strong EVIDENCE for obstruction, which was what Judge Napolitano used in making his very, very strong case.
However, when it was time to come to a conclusion and use all that damming detail to decide obstruction or not, he lost his nerve I’m afraid and got all cute about how he couldn’t decide if it was obstruction or not. Really? Grow a pair pal.
In my mind, there was a slam dunk case for obstruction that took place in public, one example being firing Comey, and then shortly after going on national TV and saying he did it because of the Russia investigation.
That’s obstruction right there people – let’s not pretend this was some hard to call, “gray area” type of thing – he did everything he could to kill the investigation and he did much of it publicly.
Perhaps all the Trump temper tantrums had their effect – it could be that Mueller in the end lacked the spine to really anger President Trump by calling obstruction obstruction, and for that matter, to call conspiracy with the Russians conspiracy with the Russians,
In my opinion, he did the constitution and our democracy a great disservice with his weak-kneed conclusions, and for someone who was vaunted as such a steely-eyed patriot by everyone, I think he really let us down..
Fortunately we’re left with all the good detailed evidence his team compiled, which actually would be damning enough if we had a bipartisan congress, but since that’s not the case, it would have been very good if he’d had the spine to report conclusions that crimes had been committed, whether the DOJ is allowed to prosecute them for a sitting president or not.
Voters in 2020 deserved to know that in fact crimes were committed, and because of Mueller’s weak conclusions, they will hear instead that he was not found guilty of any by the special counsel.
Again, it’s sad that even a Fox news guy (who might now be in trouble with his network), saw the black and white case for multiple counts of obstruction, and also condemned it in the strongest possible words, while rather pathetic Robert Mueller did neither.
Obstructing what “Justice”? The investigation seems to have been, if nothing else, thorough. If the pursuit of justice in this case was about proving Trump colluded with Russian nationals and the Russian government to spin the election in his favor, justice appears to have been done, insofar as the President has been effectively exonerated on that charge.
I suppose many Dems think the only possible justice in this case is Trump behind bars, but Dems feelings about Justice are not Justice under the law.
“If the pursuit of justice in this case was about proving Trump colluded with Russian nationals and the Russian government to spin the election in his favor, justice appears to have been done . . .”
It is possible to obstruct justice even if the investigation that the defendant is trying to obstruct comes to a conclusion.
“. . . insofar as the President has been effectively exonerated on that charge.”
Not even close. There is no such crime as “collusion,” so he could not have been “exonerated.” On the other hand, it looks like he was up to his comb-over in obstructing justice.
“I suppose many Dems think the only possible justice in this case is Trump behind bars . . .”
Removal from office would be fine, although house arrest would not be a bad outcome. “FCI Mar-a-Lago” has a real ring to it.
“. . . but Dems feelings about Justice are not Justice under the law.”
If Trump supporters had any shame, they would think twice before talking about “Justice under the law.”
Just because someone doesn’t succeed in committing the intent of their crime, doesn’t mean they didn’t commit a crime. Attempted murder is a punishable offense, after all. And it’s clear from the Mueller report (if you read it, anyway, instead of relying on snippets and summaries) that Mueller does not say that there is no crime.
In fact, the Mueller report says that it’s likely there IS a crime that they were unable to uncover. Whether that’s due to the efforts of Trump et al. in their obstructionary efforts, or if it was due to the limitations of the boundaries of the investigation itself is not clear.
The Mueller report also does quite a bit of generous interpretation around what it means to “conspire” or “collude.” We don’t have access to an unredacted report. It’s very possible that that rabbit trail provides some evidence and guidance that might indicate that, while Trump’s relationship with Russia might not be through a legal definition of conspiracy with specific regard to the 2016 election, there may indeed be corruption and conflict of interest.
This is precisely what the emoluments clause was supposed to prevent. So, in light of the fact that the Mueller report indicates that it believes that there was/is a crime, and the hints that the Trump/Russia relationship was TECHNICALLY not a conspiracy, it seems like there’s more work to do. And if he’s found to have violated the emoluments clause (which, even though there wasn’t a conspiracy, he DID benefit from the Russian gift of interference, so he might be guilty of at least that), then what?
The purpose of the investigation was not to prove Trump colluded with the Russians or to prove that Trump did anything. It was to determine whether any crimes were committed by the obvious and publicly known efforts of the Russians to interfere with the election. It was Trump’s public and not too subtle efforts to obstruct the investigation as much as anything which made him an obvious suspect of colluding with the Russians to undermine HRC’s candidacy. The evidence shows it was not for want of trying that the Trump campaign organization did not succeed either.
Trump has only been exonerated by an AG who wants to keep his job more than he wants to serve the interests of justice or the American people. Trump would truly serve the interests of the country if he would invite the special prosecutor to seek a grand jury indictment of him and bring on a trial if he thinks the evidence supports a charge of obstruction. That’s the only thing that would clear Trump. It may be true that many in this country believe that the only possible justice is Trump behind bars. Justice is served when the criminal justice system is allowed to play out through a trial by jury based upon the evidence. How many Trump supporters think it would serve justice if Trump was charged and tried for obstruction of justice?
And neither was there “exoneration” of Trump, his coterie, or the Republican leadership as to crimes concerning foreign interest interference in the election. To my understanding, Mueller simply found that the evidence the investigation produced did not prove such crimes beyond a reasonable doubt.
This is in the context of documented obstruction and destruction of evidence; an inappropriately narrow scope of inquiry (excluding, e.g., decades of compromised financial relationships with the Russian/global kleptocracy that are the strongest evidence of motive and opportunity to coordinate); the increasing likelihood that Barr/Rosenstein prematurely terminated the investigation; and, finally, Mueller’s insistence on a very narrow definition of conspiracy (explicit agreement) that may or may not fit the legal definition but certainly is different from the common sense one.
No fair-minded person doubts that the Republican leadership and the Trump campaign, at a minimum, knew of and encouraged Russian disruption of the 2016 election, and are doing what they can to facilitate the same in 2020. How this fits with duty to, or love of, country continues to puzzle me.