Three reasons Mueller may not charge Trump with obstruction

As I have previously argued, none of the allegations raised over obstruction fit well with the criminal code or prior opinions defining that crime. There are a variety of obstruction crimes but most have no applicability to this controversy. There is Section 18 U.S.C. 1503 which broadly defines the crime of “corruptly” endeavoring “to influence, obstruct or impede the due administration of justice.” This “omnibus” provision, however, is most properly used for judicial proceedings such as grand jury investigations, and the Supreme Court has narrowly construed the provision.

There is also 18 U.S.C. 1512(c), which makes it a crime for any person who corruptly or “otherwise obstructs, influences or impedes any official proceeding, or attempts to do so.” However, this provision has been narrowly construed as well on the underlying conduct and the need for some “official proceeding.” Mueller should be fully aware of that problem since his principal deputy, Andrew Weissmann, was responsible for over-extending that provision in a jury instruction that led the Supreme Court to reverse the conviction in the Arthur Andersen case in 2005.

These and other provisions simply do not make for a compelling case against Trump. While Trump has shown breathtakingly poor judgment in firing Comey and publicly attacking investigators, that is not obstruction. Moreover, Trump had independent grounds to fire Comey, including many of the reasons cited by Deputy Attorney General Rod Rosenstein in his scathing criticism of Comey in 2017. Put simply, this is not what an “O” bomb looks like.

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