It’s not clear whether McCabe, who last week told the Senate Intelligence Committee “there has been no effort to impede our investigation to date,” knew about the alleged conversation regarding Flynn. But even assuming the account is true, proving that Trump acted with the requisite criminal intent might be difficult, especially since it is entirely plausible, given what we know about the president’s ignorance of how the federal government works, that he did not realize his attempt to help Flynn was improper. If so, it is hard to see how he could have acted “corruptly,” as the statute’s mens rea element requires. The problem here is similar to the challenge of characterizing Trump’s myriad misstatements. Is it a lie if he thinks it’s true? Is it a crime if he does not realize he’s breaking the law?
“I do not believe that our president sufficiently understands the nature of the office that he holds, the nature of the legal constraints that are supposed to bind him, perhaps even the nature of normal human interactions, to be guilty of obstruction of justice in the Nixonian or even Clintonian sense of the phrase,” writes New York Times columnist Ross Douthat. He has a point. Someone who understood that firing Comey could be construed as obstruction of justice would not have broadcast his irritation with the Russia investigation the day before or so casually admitted afterward that it was a factor in his displeasure with Comey. Someone who understood that asking the director of the FBI to lay off Flynn could be construed as obstruction of justice never would have asked.