Obamagate: Should the Former President Be Investigated for Obstructing the Russia Investigation?

May 19, 2020 Updated: May 19, 2020

Commentary

Our country’s government spent years and many millions, ultimately unsuccessfully, investigating every microscopic nuance of potential obstruction by President Donald Trump of the Russian collusion investigation.

In light of recent revelations, can we think the unthinkable: Should our canonized ex-President Barack Obama be investigated criminally for potential obstruction of the same investigation?

As the Mueller Report suggests, obstruction of justice can involve an attempt, that is, any “endeavor,” to impede an investigation, even if unsuccessful. Attorney General William Barr, strictly construing the statute, limits the crime to any attempt to affect the availability or quality of evidence in an investigation.

So, our first question is very simple: When President Obama met with his national security officials on Jan. 5, 2017, was there any discussion about keeping from the incoming President Trump and his national security team evidence being gathered in the Russian collusion investigation? If there was, wouldn’t this be a conspiracy to “endeavor” to limit the availability of evidence? Yes, it would.

The soothingly dismissive response from Obama’s advocates would be as follows. It’s generally accepted that the attorney general is in charge of criminal investigations and that concealing evidence from him and his agents is a crime, as distinguished from keeping it from the president.

Under this view, so long as evidence was not kept from the Acting Attorney General Rod Rosenstein (Attorney General Jeff Sessions had recused himself), all would be well. Employing this analysis, not only was it acceptable to conceal evidence from Trump, it was advisable to do this, so that he could not taint or influence the attorney general’s investigation.

This framework would seem, at first blush, to accord with the prosecution of President Richard Nixon’s obstruction that drove him from office in the Watergate scandal. Nixon attempted by fraudulent concealment to keep “Mexican money trail” evidence from the FBI, the attorney general’s investigatory agent. The president could and did obstruct the attorney general’s investigation, even though, of course, the attorney general served under him.

But in making this comparison, we miss a crucial distinction. The “Russian collusion” investigation, unlike the Watergate burglary investigation, was not a criminal probe, but, rather, a counterintelligence investigation.

The attorney general and the FBI may work on such a counterintelligence investigation, but such is a matter that is always within the president’s national security powers as the Commander in Chief under the Constitution. Accordingly, the president, not the attorney general, necessarily heads a counterintelligence investigation.

If we are, therefore, to draw a true analogy to Watergate, on Jan. 5, 2017, President Obama and his national security team endeavored to prevent the incoming national security team, headed by Trump, to receive both the key evidence, or lack thereof, of collusion thus far gathered, and evidence of the methods used to gather those facts. Concealment is a form of fraud, and therefore a corrupt act, just as was Nixon’s attempted concealment of the Mexican money.

We can now understand why National Security Adviser Susan Rice on Jan. 20, 2017, sent herself the odd, flank-covering memo that President Obama wanted all to be done “by the book.” She wouldn’t say this if all was truly “by the book,” and our analysis reveals her guilt behind these guilty words.

Rice said in her memo Obama wanted the team “to ascertain if there is any reason why we cannot share information fully as it relates to Russia.” That same memo noted that Obama directed then-FBI Director James Comey “to inform him if anything changes in the next few weeks about how we share classified information with the incoming team.”

The sum and substance of these statements imply that Obama is directing his team not to share everything with Trump and the incoming team. If there were to be an “open kimono” approach, why bother to convene the meeting? And why write the memo?

Is there corroborating evidence of obstruction? Yes, in that all information was not shared with the incoming team, and especially with President Trump. Comey was guarded, cryptic, and game-playing with Trump about the Russian collusion investigation, even though Trump as his Commander in Chief was the head of that investigation. There’s no doubt but that Comey withheld information from Trump. We must assume from the Rice memo that this withholding resulted from the Jan. 5 meeting.

Thus, there certainly appears at least to be probable cause to conclude that President Obama directed his national security officials to withhold information from Trump and his team, which would be classic obstruction of justice.

Although we don’t expect candor from the targets, at the very least the “institutional norms” of which Obama just recently spoke should be followed, and he and his team should be investigated every bit as vigorously as Lt. Gen. Michael Flynn.

John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of “Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today’s Partisan Advocacy Journalism.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.