How A Federal Prosecutor Looks at Trump's Obstruction of Justice

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How A Federal Prosecutor Looks at Trump's Obstruction of Justice

Special Counsel Robert Mueller is almost certainly investigating the President and several of his associates for an ongoing conspiracy to obstruct justice. It’s also almost certain that one of these people is his son, Donald Trump Jr., who gave an interview to the Senate yesterday that unsurprisingly helped nobody, including himself and his father. In fact, DJTJ managed to make the case against them even stronger.

As if Mueller needed the help. I didn’t know how strong the obstruction case was until recently, when a couple of former federal prosecutors broke it down for me. Now I’ll try to break it down for you. In this column I’ll explain:

— what conspiracy to obstruct justice actually is;
— how a federal prosecutor would lay out the case against Trump; and
— why it’s almost a lock, based on public information alone.

Only problem: The case is too big. Many people, including the President, are implicated for many reasons, so in the interest of saving everyone a lot of grief I’ll break it into three pieces:

First, what DJTJ just talked about to the Senate: The Trump Tower meeting. This will burn DJTJ, Jared Kushner, Trump, and a whole bunch of lawyers. Next we’ll look at the Comey firing and the Flynn investigation. In that one we’ll get to burn Mike Pence, Mike Flynn, Kushner, Trump, and more lawyers. Finally, with the help and advice of former federal prosecutors, I’ll present a full-on hypothetical indictment for conspiracy to obstruct justice.

But for now: DJ TJ, mixin’ messages on the record.

You Can’t Prove It!

First: What you have to do to obstruct justice? It’s not very well defined. Here’s the actual language of the law:

“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 administration of justice.”

The focus today: Corrupt intent. We can’t ever truly know what’s in anyone’s heart, only what someone has said and done and how they’ve reacted to events. We infer intent like this every day, and it turns out that’s what federal prosecutors do, too.

The prosecutor’s job is to take proven facts, juxtapose them against one another, and construct a compelling narrative that will convince a jury. There’s no DNA evidence of someone’s truest soul that will prove intent with scientific certainty. Juries are therefore instructed to use common sense when evaluating these facts in light of law.

Consider this: Is your SO cheating on you? Did they not come home until late last Thursday? Weird excuse? Well, that doesn’t mean much. But what if they don’t come home until late three, four times a week? What if some of the explanations are contradictory? What if they smell like they’ve been drinking? Start showering every night they’ve been out late? What if they’re constantly texting but seem like they’re shielding it? What if they’re sexually distant for a few days? For a few weeks? For a few months?

When it comes time to convince a grand jury that there’s reason to believe a crime has been committed, context matters. Circumstantial evidence matters. The whole concept matters.

This is why federal judges also instruct juries to give direct evidence and circumstantial evidence equal weight. And we’ve got a shitload of it. To make it easy for you to skim, I’ve bolded everything that can be used to reinforce this long and almost pathological pattern of corrupt intent.

This means you’re the jury: Use common sense, and give direct and circumstantial evidence equal weight. Is there probable cause of corrupt intent to influence, obstruct, or impede, the due administration of justice?

DJTJ and The Seven Or Eight Stories

Let’s start with DJTJ and work our way up to Kushner, Trump, and the lawyers. First, let’s go with a big fat lie, the one DJTJ told the New York Times in March of this year.

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But we’ve since learned that DJTJ himself set up the Trump Tower meeting, and he was representing the campaign.

Since then, DJTJ changed his story about that meeting a number of times, withholding information, then admitting it when he got caught, then shading it in retrospect. Here are his stories.

Before any of this came out, he’d said there were no meetings, period, between anyone in the campaign and the Russians, and he didn’t know Russia was trying to help get Trump elected.

Then we see emails that say he set up a meeting to conspire with Russia, and that he knew it was part of the Russian government effort to elect his father.

Before the emails themselves were made public, though, he said, “We primarily discussed a program about the adoption of Russian children.” (Trump himself reportedly dictated this statement.)

Next, after White House aides told the New York Times the meeting was to get dirt on Clinton, DJTJ released a second, different statement with key elements that had been left out of the first: ”[T]he woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Mrs. Clinton… It quickly became clear that she had no meaningful information. She then changed subjects and began discussing the adoption of Russian children and mentioned the Magnitsky Act.”

Then the next day, when he released the emails, he said this on Twitter: He believed the info the Russian lawyer was offering was “Political Opposition Research,” and that she “had no information to provide and only wanted to talk about adoption policy and the Magnitsky Act.”

And then yesterday DJTJ all but told us his initial statement (dictated by his father) was intentionally misleading: “To the extent they had information concerning the fitness, character, or qualifications of a presidential candidate, I believed that I should at least hear them out.”

Again, this representation of events is contradicted by the very first email he wrote.

We can even summarize all of this:

1. I didn’t participate or represent the campaign in any meetings with Russians.
2. Ok, you got me: I did. But it was only about adoption.
3. Boy, you guys are good. Fine: The lawyer offered some dirt on Clinton. But it was dumb dirt and it made me upset. I wanted to conspire with the Kremlin!
4. (Unsaid, but written in email: The Russian government offered this to my dad as part of its efforts to help him get elected. I was fuckin stoked to use it!)
5. These meetings are normal.
6. This wouldn’t be a big deal if the media wasn’t obsessed with Russia.
7. I simply wanted to find out all I could about Clinton’s fitness, character, or qualifications, and the Russians were helping me do that.
8. Then I lied about it for a year. Also, my dad left all of this out.

Seems legit. No corrupt intent here. Let’s move on.

But DJTJ, You Lied To Congress

Dammit.

First, in yesterday’s Senate meeting, DJTJ flat-out denied colluding (“I did not collude”) with a foreign government, and also admitted he colluded with a foreign government.

Colluding isn’t a legal term, folks. We’re talking conspiracy to obstruct. And we’ve got it.

Here’s a lie: DJTJ told the Senate he wanted to determine Clinton’s “fitness” for office. This contradicts not just one but two things. First, it contradicts the statement Trump wrote, which said the meeting was about adoption. Second, it contradicts DJTJ’s initial email reaction: “If it’s what you say it is I love it especially later in the summer.”

In other words, a lie: He told the Senate he took the meeting to help appraise Clinton’s fitness, but his email said he wanted to use this “incriminating information” during the campaign.

The email and his interview give two different representations of this meeting. It’s a crime to lie to congress, and also a crime to withhold or in any way falsify information. After DJTJ left the Capitol, Sen. Chris Coons emailed the Senate a reminder that included the Senate’s statute on lying to congress.

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If the Trump team’s defense is to change premise of the meeting (which, again, we have in writing) this indicates their lawyers are willing to risk violating laws of obstruction of justice, because they know they’re in a lot of trouble. Remember too that DJTJ has given several explanations and lied repeatedly to the American public for over a year.

Now I’ve sown some doubt, yes? It’s pretty hard to believe DJTJ isn’t withholding more details.

For instance, another Russian who was in the room told the AP that the lawyer presented a folder of documents and left them with the Trump team. DJTJ was promised documents in the original email. Think it’s possible DJTJ chose to leave this detail out? And why have all of DJTJ’s statements failed to mention any Russians but the lawyer??There were four others in the room. He’s quite likely withholding something, and if the other Russian’s account is accurate, he definitely is.

Then this: He told Congress he never told his father about the meeting.

Let’s look at that, shall we? Trump’s the big fish, after all.

Fathers and Sons

Yesterday DJTJ reportedly told congress he “did not recall” White House involvement in crafting his statement about the meeting. He also said he “didn’t know much” about what had happened on Air Force One, when his father, the President of the United States, dictated his first statement, which, as he reinforced today, was a lie.

Yes: DJTJ said he couldn’t recall who wrote his own statement. But also note that he didn’t ever deny that his father wrote that lie. Importantly, he didn’t even deny knowing his dad was involved.

So how’d he get that statement?

It’s been widely reported that Trump himself dictated the initial statement, which left the most incriminating part out. Okay: So what did the President know and when did he know it?

Trump first said, on July 9, that he “didn’t know until a couple of days ago.” He said it again that night: “I only heard about it two or three days ago,” but added, “In fact maybe it was mentioned at some point.” He said he didn’t know the meeting was about dirt on Clinton.

To get a better answer than Trump gives us, we’ve got to turn to Jared Kushner. His lawyers discovered the emails when preparing yet another security form for him. Trump said he hadn’t heard about the meeting until around July 5 or 6, but Kushner’s lawyers sent the emails to Trump’s lawyer and the lead lawyer for the Organization, over two weeks earlier, on or around June 19.

And are we also to believe that Kushner, after filing his form on June 21, didn’t tell Trump for over two weeks?

As for when Trump knew, Kushner in a written statement also gave us previously unreported info: DJTJ asked Kushner to attend meeting not once, as indicated by the emails, but TWICE. He asked Kushner (not over email) on or around the evening of June 7.

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On the evening of June 7, DJTJ set the meeting for 3:00 pm. That changed the next morning, when it got pushed back to 4:00. He emailed Kushner and Manafort about that, but we have no email to either of them on June 7.

So: Were Kushner, Manafort, and DJTJ all in the same place on the evening of June 7? Indeed they were: DJTJ and Kushner were onstage with daddy that night, the night he promised he’d soon offer major dirt on Clinton. Manafort was there, too.

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So Kushner says he didn’t read the content DJTJ’s emails, but he didn’t have to: DJTJ likely told him in person. Kushner also never says that he didn’t know the pretext of the meeting in advance. This is all intended to mislead. Kushner hasn’t told us what he knew and when.

Obviously we also have to ask ourselves whether it’s reasonable to believe that Trump himself, at this very weird, very unique circumstantial confluence of so many events, actions, and reactions, truly didn’t have any idea his son and son-in-law were about to get dirt on Clinton.

What did the President know, and when did he know it?

And we have to follow all of this up by pointing out that THE ENTIRE CAMPAIGN SYSTEMATICALLY DENIED ALL CONTACTS WITH RUSSIANS FOR MORE THAN A YEAR.

And that Trump himself said this in February.

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Also, it’s very weird neither DJTJ nor Kushner ever mention Paul Manafort. Not once in their statements. But Manafort was at speech, on the email chain, and in the room. And he was the “campaign boss,” as DJTJ put it in an email. What are they covering there?

And last, I’ll note that we still haven’t heard from Manafort, and will leave you with this.

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The intent here is so corrupt that even the holes have holes. Next week: Comey.

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