What You Need To Know About The Russia Investigations: Alleged Obstruction What is obstruction of justice and what role does it play in the Russia imbroglio?
NPR logo What You Need To Know About The Russia Investigations: Alleged Obstruction

What You Need To Know About The Russia Investigations: Alleged Obstruction

The question of obstruction of justice could be a key part of the Justice Department special counsel's investigation. Roy Scott/Getty Images hide caption

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Roy Scott/Getty Images

The question of obstruction of justice could be a key part of the Justice Department special counsel's investigation.

Roy Scott/Getty Images

Updated March 14, 2019

What is obstruction of justice?

It's against the law to frustrate or try to frustrate an investigation, even if no underlying crime was committed. Lying to federal investigators is a crime on its own and so is acting more broadly to prevent or delay or otherwise interfere with the course of their work.

It's also politically important: The last two occasions on which Congress has filed articles of impeachment against sitting presidents — against Richard Nixon and later, Bill Clinton — they included allegations about obstruction.

But it's a complicated case for a prosecutor to make because the law requires proving that someone had a corrupt intent to obstruct justice and then acted in service of that aim.

That means getting inside a subject's head and convincing a jury about what happened, which is difficult.

Why do critics accuse President Trump of obstructing justice?

One theory of the case is that President Trump may have broken the law by asking FBI Director James Comey not to pursue the case of former national security adviser Mike Flynn.

Flynn lost his position in the White House after lying to Vice President Mike Pence about a conversation Flynn had with Russia's ambassador before Trump was inaugurated, although the specific details from that time aren't fully known.

What Comey says is that Trump cleared the room on Feb. 14, 2017, and, with just the two of them present, asked him to "let this go."

Trump denies that. He also denies an earlier conversation described by Comey in which Comey says the president asked him for his "loyalty." What is not in dispute is that Trump fired Comey on May 9, 2017.

Did the president fire Comey to try to intimidate the FBI or delay its investigation? What other actions might he have taken before the fact? Did he ask other people in the administration — whether Attorney General Jeff Sessions to Director of National Intelligence Dan Coats or others — to try to get the FBI to ease up on Flynn?

This could be a major question for Justice Department special counsel Robert Mueller.

What does Trump say?

Trump has connected his firing of Comey to the Russia investigation in some public comments, but the president and other administration officials also have given other reasons for the firing.

The formulation of Trump's decisions, their timing and other matters are likely a subject of close focus by Mueller, who was appointed to take over the Russia investigation after Comey's firing.

The president denies any suggestion his campaign conspired with the Russian attack on the 2016 election and calls the subsequent investigation a "witch hunt."

On obstruction, he also denies wrongdoing, but the matter is slightly less clear-cut because he does acknowledge his willingness to "fight back," as Trump has described on Twitter.

What does Comey say?

Comey made clear from the first that he believes a president has the power to fire an FBI director at any time. Comey talked to NPR's Steve Inskeep and Carrie Johnson in April 2018. He was asked about obstruction and said that although Trump could be guilty, he didn't have a full picture of the evidence that investigators may be assembling.

"I can't see all of it," he said. "And it could be obstruction of justice. It would depend upon what the full scope of the evidence is with respect to intent, because obstruction of justice requires a demonstration of corrupt intent. And I'm just a witness when it comes to that particular incident, the February 14th incident. And so I don't know what the evidence is that the prosecutor and investigators have gathered with respect to intent. It maybe there, it may not be. I just — it doesn't make sense, and I can't responsibly offer an opinion from my vantage point."

What else may Trump have done?

Pardons

Political opponents of the president have accused the White House of holding out the prospect of pardons to people who've been charged in the course of the Russia investigation to induce them not to implicate the president. Trump may have encouraged people to endure their prosecutions and imprisonment because he would take care of them in the end, according to these allegations.

Attorney General William Barr told the Senate that kind of conduct, if proven, might amount to obstruction.

Trump has said his former personal attorney Michael Cohen appealed to him "directly" for a pardon — but the president rebuffed him.

More broadly, the White House has denied that it tried to offer people incentives not to cooperate with prosecutors, while not ruling out the prospect that the president may use his clemency power to help people implicated in criminal wrongdoing discovered during the Russia investigation.

Personnel

Trump reportedly considered then-Acting Attorney General Matthew Whitaker to be his man at the Justice Department, one who reportedly believed his job was to "jump on a grenade" for the president.

There also have been questions about whether the president's preference for people he considered loyal went even further down into the department.

Trump, for example, reportedly asked Whitaker whether the man whom the president appointed to be the U.S. attorney for the Southern District of New York might take over Cohen's case. But that U.S. attorney, Geoffrey Berman, already had been recused from Cohen's case.

Congress

Cohen told Congress that the White House encouraged him to lie to lawmakers about the negotiations Cohen had undertaken on behalf of Trump about a possible Trump Tower real estate project in Moscow. Cohen told the House oversight committee that at least two lawyers working for Trump world had edited his statement to get the story straight.

The White House disputes that. Trump and his supporters have pointed out Cohen's history of telling lies, including to Congress, and argued that means nothing he says now is believable.

Cohen reportedly has provided some documentation about his assertions to the House intelligence committee, but it isn't clear what he has given lawmakers or what story it may tell.

Taken together, Trump's alleged actions — attempting to get investigators off various cases, attempting to put people loyal to him in charge of other cases and encouraging people in his orbit to lie or not cooperate — form what critics call a pattern of obstruction.

Trump rejects that idea and says there is no need for any congressional investigation or impeachment because he hasn't done anything wrong.