The Washington Post is reporting that President Donald Trump himself dictated the cover story to be used by his son, Donald Trump, Jr., and the White House after it came to light that Trump Junior had met with associates of Vladimir Putin to attempt and conspire to influence the 2016 US presidential election:
Flying home from Germany on July 8 aboard Air Force One, Trump personally dictated a statement in which Trump Jr. said he and the Russian lawyer had “primarily discussed a program about the adoption of Russian children” when they met in June 2016, according to multiple people with knowledge of the deliberations.
Trump’s story was a lie intended to mislead the public and investigators alike. As we now know, Trump Junior met with Russian operatives hoping to collect Russian-supplied opposition research on Hillary Clinton that the Trump campaign might use in its efforts to install Trump — with the blessing of Vladimir Putin — in the White House.
Here are the elements of obstruction of justice under federal law (from the US Attorneys’ Manual):
Let’s break that down in light of the latest revelations.
1. Was there a proceeding pending at the time Trump dictated the denial?
As I have discussed elsewhere, for purposes of obstruction, the second highest court in the land has ruled that an investigation constitutes a proceeding if the investigating agency or body has subpoena power or the authority to compel testimony. Robert Mueller, Special Counsel, has the full panoply of powers enjoyed by a United States Attorney, including the power to issue subpoenas and compel testimony. So unlike a mere FBI inquiry, a Special-Counsel probe is likely a proceeding for purposes of obstruction.
2. Was the Don Junior meeting relevant to that proceeding?
Yes. Here’s a recent report from The Hill:
Special counsel Robert Mueller has requested that White House staff save all documents connected to Donald Trump Jr.’s meeting with a Russian lawyer at Trump Tower in June 2016, CNN reports.
Mueller sent a document preservation request to the White House asking staff to preserve an array of communications pertaining to the meeting between Russian lawyer Natalia Veselnitskaya and President Trump’s eldest son, such as text messages, notes and voicemails, according to CNN.
Practice tip: a prosecutor does not order parties to preserve documents and other materials that are not relevant to an ongoing proceeding.
3. Did Trump know or have reason to know that the proceeding was ongoing?
Of course he did. He’s obsessed with the Mueller investigation; he knows that Mueller is targeting Trump himself and his family; and he knows that his and his family’s business interests and associations have come under scrutiny.
4. Was Trump’s conduct designed to influence the investigation?
Yes. Trump has been personally orchestrating a campaign designed to a) intimidate and harass Mueller and his team with allegations of improper conflicts and unethical motives; b) threaten Mueller and others in the Department of Justice with termination should they cross any “red line”; and c) obfuscate, stonewall, and mislead to the fullest extent possible.
Trump’s role in dictating the Don Junior denial puts him at the center of his team’s efforts to release misleading information that would throw investigators off the scent of the Trump family’s criminality. The Post article states that some in Trump’s orbit had counseled honesty, believing that the truth “would eventually emerge.” The article continues,
But before everyone boarded [Air Force One to return to the US from the G-20 Summit], Trump had overruled the consensus, according to people with knowledge of the events.
So it was Trump himself who decided on a course of deceit. Obviously, an attempt to point investigators away from the truth and toward a falsehood — through the press or any other medium — is an attempt to influence an ongoing proceeding.
5. Was Trump’s conduct corrupt?
It seems so. The Post story includes this reporting:
As Special Counsel Robert S. Mueller III investigates potential obstruction of justice as part of his broader probe of Russian interference in the 2016 election, [some Trump] advisers worry that the president’s direct involvement leaves him needlessly vulnerable to allegations of a coverup.
“This was . . . unnecessary,” said one of the president’s advisers, who like most other people interviewed for this story spoke on the condition of anonymity to discuss sensitive internal deliberations. “Now someone can claim he’s the one who attempted to mislead. Somebody can argue the president is saying he doesn’t want you to say the whole truth.”
When even Trump’s own advisers acknowledge that Trump’s intent was to mislead and cover up, the question whether Trump acted “corruptly” within the meaning of the federal obstruction law cited above seems almost callow. Of course he did.
This is a bigger story than the media is yet making it. The President of the United States personally dictating a statement meant to mislead as to facts material to an ongoing investigative proceeding — that is a breathtaking development. Trump’s voters might not be watching, and they might not care. But Robert Mueller is, and Robert Mueller does.