Law and Crime:
This weekend, the New York Times published a January 2018 letterdrafted by the Trump legal team and sent to Robert Mueller in an attempt to preempt any subpoena that Mueller might have been planning to send Trump’s way. Kudos to John Dowd and Jay Sekulow (Trump’s lawyers at the time) for their efforts, but it might’ve impressed the special counsel a bit more if they’d actually done their research.
For starters, they argued about the wrong obstruction statute. No, I’m not kidding. Here’s what the letter said:
“… § 1505 of Title 18, United States Code…forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress…No court has ever held than an FBI investigation constitutes a § 1505 proceeding… As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.”
Okay, got it. The statute only forbids interference with “pending proceedings” and an FBI investigation isn’t a “pending proceeding.” That would be a fantastic legal argument, but for one little problem. 18 USC §1505 isn’t the statute under which Trump would be prosecuted for obstruction of justice – 18 USC §1512 is. That statute was enacted in 2002, it criminalizes corrupt interference with investigations even before proceedings have actually begun. 18 USC §1512 would probably be the one under which Trump were indicted (assuming it came to that) for the Comey situation.
18 U.S. Code § 1505 – Obstruction of proceedings before departments, agencies, and committees:
Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or
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 and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or 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—
And here is 18 U.S. Code § 1512 – Tampering with a witness, victim, or an informant. Click here.