Obstruction of Justice And White House Contacts with the FBI About Russia.

The White House “Russia-gate” story has already claimed one major administration official with the resignation of Michael Flynn. Breaking now are new, very disturbing reports, that the Trump Administration attempted to influence the FBI’s investigation into the Trump campaign’s possible communications with Russian officials before the election. CNN Reports that, as stories of such communications swirled in the media, the White House contacted the FBI requesting that it advise the press that the reports were wrong and no such communications occurred. CNN reports that the FBI, quite notably one might think, refused to do so.

The communications are very disturbing because they violate Justice Department memos that generally bar such communications and limit their use both in who can make them and the purpose for such communications. The relevant memorandum begins with the admonishment that “the rule of law depends upon the even handed administration of justice. The legal legal judgements of the Department of Justice must be impartial and insulated from political influence.” The memo later discusses the need for investigations to be “free from either the reality or the appearance of improper influence.”

The memo also:

  1. Limits who from the White House can have such communications to the Counsel to the President, the Principal Deputy Counsel to the President, the President, or the Vice President. This is important because CNN Reports that the person from the White House side who did this was White House Chief of Staff Reince Priebus, not on the approved list to do so.
  2. The memo also limits the purpose of such communications to “only when it is important for the performance of the President’s duties and appropriate from a law enforcement perspective.” Seeking to mitigate bad PR should not be the purpose of the communications under the guidance from this memo.

Of course, this is just a memo. It is not itself law and the mere failure to follow it is not any sort of criminal violation. But here’s the thing. The memo is designed to provide guidance on how to avoid violations of law. In this case one such potential statute is 18 U.S.C. 1805 defining “Obstruction of proceedings before departments agencies or committees.” In relevant part that provision creates an offense for:

“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”

Both the FBI and Congress are investigating potential Trump campaign communications with Russia prior to the election. Attempting to gain the FBI’s public commitment to the results of such investigations, before they are complete, arguably endeavors to influence the investigations by both.

So is this the impeachable offense the Trump impeachment movement has been looking for? Well no, not yet anyway, because Trump himself has not been implicated. There is no potential criminal conduct to pin on him unless he authorized or conspired to conduct such communications. However, these recent allegations do possibly impugn the White House Chief of Staff, and perhaps others, with what might be interpreted as criminal conduct.

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