Yeah, Bill Barr’s argument on this point left me scratching my head last week and I’m still scratching it now. He told Dianne Feinstein during his latest Senate testimony that one reason he didn’t think Trump had obstructed justice is because obstruction under the law requires evidence of “corrupt intent.” If the president knew he was innocent of collusion, Barr reasoned, and sincerely felt persecuted for partisan political reasons then would it really have been “corrupt” for him to try to fire Bob Mueller and end the Russiagate probe? He was frustrated (and remains frustrated) that the investigation left him under a cloud politically for two years. He wasn’t trying to prevent Mueller from indicting him. Ending an inquiry which he had every reason to believe *wouldn’t* lead to him being accused of an underlying crime isn’t “corrupt.”
But if you take that logic seriously, it should mean that no one who’s falsely accused of a crime can be convicted of obstruction. If the local U.S. Attorney starts investigating you for terrorism and you know you’re innocent, why shouldn’t you plant fabricated evidence or lie under oath to steer him away from suspicion of you? You have every right to be frustrated that he’s interrupted your life and placed a cloud over you when you know you haven’t done anything wrong. Witch hunt!
Of course you can commit obstruction even if you’ve committed no other crime and even if you acted out of “frustration.” The obstruction statute is there to deter people from deliberately impeding or corrupting federal investigations whether or not they’re at risk of being charged. We want to know when the DOJ finishes up with a probe that the probe wasn’t rigged somehow by outside sources. What makes Barr’s defense of Trump extra strange is that, while Trump might have been confident from the start that he personally wouldn’t be indicted, he was in the dark about which members of his inner circle might be. His son was in criminal jeopardy for months; his pal Mike Flynn was in such deep trouble that Trump had a word with Comey about it. By limiting the question of “corrupt intent” to whether Trump was trying to protect *himself* from being indicted, Barr glossed over the president’s anxiety about the people around him.
He’d have been better off making the strong-form argument that Alan Dershowitz made about this: If the president has the power under the Constitution to end an investigation or fire Mueller, then by definition his actions can’t be obstruction regardless of whether his motive was corrupt. They’re lawful, period. That’s an unsatisfying explanation since it would mean that the president enjoys certain powers to impede an investigation in which either he or his close associates are implicated that the average citizen doesn’t enjoy, but, well, he does. Just like Congress has certain powers to remove the president from office that the average citizen doesn’t enjoy.
Exit quotation: “Republicans need to breathe into a paper bag. If we had confronted the same facts with a different candidate, say a Democrat candidate, where one of their advisers was talking to a foreign adversary’s representative, about that adversary’s interference in our election, they would be screaming for the FBI to investigate and that’s all we did.”