A brief clarification/tutorial on the elements and context of obstruction of justice:
The White House refused to cooperate in the inquiry, blocking witness testimony and document turnover. Key individuals who refused to comply with the inquiry include Vice President Mike Pence, Secretary of State Mike Pompeo, Acting White House Chief of Staff Mick Mulvaney, former National Security Adviser John Bolton, Energy Secretary Rick Perry, Acting Director of the Office of Management and Budget Russell Vought, and Rudy Giuliani. Other White House officials who have also refused to testify include National Security Council lawyers John Eisenberg and Michael Ellis; Mulvaney adviser Robert Blair; and Brian McCormack, the associate director for natural resources, energy, and science at the Office of Management and Budget. Additionally, as specified in the report, the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense and the Department of Energy failed to produce any documents in response to “71 specific, individualized requests or demands for records in their possession, custody, or control.”
A refusal to cooperate is a matter of stated policy. On Oct. 8, White House Counsel Pat Cipollone wrote a
letter in response to a
House subpoenainforming the leaders of the inquiry that President Trump and members of his administration would not participate in the inquiry “under any circumstances.” Cipollone argued that the inquiry is unconstitutional and violates due process, and that it is seeking to invalidate the 2016 election and influence the 2020 election.
So, witnesses can refuse to comply with a congressional subpoena only if they have a valid privilege protecting their testimony. Cipollone’s letter did not assert any privilege. And without one, the refusal to engage the committee has a small problem: two federal obstruction of justice statutes.
First,
18 U.S.C. § 1505, provides that “[w]hoever 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 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 face criminal consequences. Second,
18 U.S.C. § 1512(c)(2) broadly prohibits corruptly obstructing, influencing or impeding any “official proceeding”—defined to include a proceeding before Congress.
Given the text of the two laws in question, it is worth asking why people seem so unafraid of vulnerability under them, even in flouting their apparent terms so openly.
One reason may be that the current Justice Department is most unlikely to contemplate an obstruction case against anyone for stiffing a congressional committee in the context of the impeachment investigation.
By their terms, these statutes seem to cover both the White House’s conduct and the conduct of the witnesses who are not showing up. And the congressional inquiry committees agree that the conduct is obstructive. The House
adopted a resolution guiding the impeachment inquiry, which provided that if the president blocked witnesses from testifying or refused to produce documents, “the chair shall have the discretion to impose appropriate remedies, including by denying specific requests by the President or his counsel under these procedures to call or question witnesses.” The House Intelligence Committee then devoted half of its
report to detailing the obstructive conduct, listing all the ways in which executive officials refused to comply with the inquiry.
In short, this is a long way of saying that there is continuing debate regarding whether a president can be charged under the obstruction statutes, despite the apparent application of their prohibitions to the facts at hand in the impeachment inquiry. This very ambiguity might inhibit a prosecutor from going after Trump on this point. But this does not answer the question of whether individuals who are
not the president—such as Giuliani, Mulvaney, Pompeo and Cipollone—could have a problem. I find the later very problematic as do most attorneys...