Efforts by members of Congress to advance the narrative that President Donald Trump “obstructed justice” have now replaced the disproven claims of Trump–Russia collusion.
The public narrative of obstruction, however, originated prior to the conclusion of the investigation by special counsel Robert Mueller and his resulting report.
Less than six months after Mueller’s appointment—on Oct. 10, 2017—the Brookings Institution published the first of two reports titled “Presidential Obstruction of Justice: The Case of Donald J. Trump,” which outlined, among other things, a scenario wherein Mueller would refer his obstruction findings to Congress, which would then take up the matter and continue investigating. The report also discussed ways in which Congress could impeach the president, mentioning the word “impeachment” a total of 90 times.
Norman Eisen and Barry Berke, two of the authors of the Brookings report, were later retained by House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) on a consulting basis as special oversight counsels to the Democrat majority staff.
As Nadler noted in an announcement, the two men would have a particular focus on reviewing Mueller’s investigation and would be advising the committee. It also appears Nadler intended for the two lawyers to question Attorney General William Barr.
Special Counsel’s Focus on Obstruction of Justice
It was initially believed that the primary focus of Mueller’s investigation centered around allegations of collusion. However, the release of Mueller’s report makes clear that substantial resources were dedicated to investigating potential obstruction charges—including the question of whether the president obstructed justice by firing James Comey as FBI director.
Although the Mueller report was released as a single document, it contains two separate volumes, the first part focusing on collusion and the second section dedicated solely to looking into obstruction.
The Mueller report stated that in regards to obstruction, several statutes could apply including Section 1503 and 1505, but the special counsel chose to focus primarily on Section 1512, which, as the report states, “is an omnibus obstruction-of-justice provision that covers a range of obstructive acts directed at pending or contemplated official proceedings.”
The special counsel’s report dedicates a full section to defending the use of Section 1512 and adopting the broadest interpretation possible.
Subsection 1512 (c)(2) is also notably broad in its wording; whoever “obstructs, influences, or impedes any official proceeding, or attempts to do so” could be deemed to be guilty of obstruction.
The Promotion of Use of Section 1512
Among the first mentions suggesting the use of Section 1512 was a June 2, 2017, article by the website Lawfare, which is published by the Lawfare Institute in cooperation with the Brookings Institution.
Lawfare editor-in-chief Ben Wittes and law student Helen Klein Murillo write in a blog post headlined “Does an FBI Investigation Qualify Under the Obstruction of Justice Statutes? A Closer Look”:
“It’s possible that § 1512 is the more appropriate statutory provision. It also happens to be easier to prove because it doesn’t require a ‘pending’ proceeding (though the defendant must have contemplated the existence of some future proceeding in order to intend to obstruct it).”
The article was written approximately two weeks after Mueller was appointed as special counsel.
Lawfare has been supportive of former FBI executives such as Comey, and former FBI General Counsel James Baker is now a contributing editor at Lawfare.
Wittes had a series of conversations and meetings with the FBI director that were later detailed in a New York Times article. Wittes personally described his interactions with Comey in the Lawfare article “What James Comey Told Me About Donald Trump.”
Wittes was also the author of an article in October 2016 that discussed the need for an “insurance policy,” which, according to Wittes, was a “cross-ideological network of lawyers and philanthropists” dedicated to fighting Trump in court, should he win the election. Wittes was very forthright in his feelings, writing, “If Trump wins it, the Coalition of All Democratic Forces needs to be prepared to see him in court.”
It is unclear whether the Brookings report was part of this effort suggested by Wittes, who is also a senior fellow in governance studies at Brookings.
In the report, which was brought to my attention and initially covered in an article called “Fabricated Obstruction” by an internet researcher, it became clear that Section 1512 was also a primary focus of Brookings from a very early start.
The Obstruction of Justice Strategy
Brookings produced a 108-page report, “Presidential Obstruction of Justice: The Case of Donald J. Trump,” authored by Barry Berke, Noah Bookbinder, and Norman Eisen, on Oct. 10, 2017. They followed up with a 177-page second edition on Aug. 22, 2018, which also came with a lengthy appendix.
Eisen, a senior fellow at Brookings, served as White House special counsel for ethics and government reform under former President Barack Obama and is the founder of CREW (Citizens for Responsibility and Ethics) in Washington. Eisen, according to his Brookings profile page, advised Obama “on lobbying regulation, campaign finance law, and open government issues,” according to his CREW bio. He also served as the ambassador to the Czech Republic from 2011 to 2014.
The second author, Noah Bookbinder, currently serves as CREW’s executive director. Prior to that, “he served from 2013 to 2015 as director of the office of legislative and public affairs at the United States Sentencing Commission,” according to his bio. Bookbinder also served as chief counsel for criminal justice for the U.S. Senate Judiciary Committee and “advised Judiciary Committee Chairman Patrick Leahy (D-Vt.) on a wide variety of criminal justice issues.”
The third author, Barry Berke, is a trial and white collar criminal defense lawyer who recently defended two Deutsche Bank investment professionals “in a criminal case that the government described as its largest tax shelter prosecution.” Earlier in his career, Berke was “a trial lawyer with the federal defender’s office for the Southern District of New York.”
The first Brookings report looked at all the statutes that applied to obstruction, but the second focused more tightly on Section 1512. In many respects, the Brookings second edition provides parallels to the Mueller report, with its lengthy section on “What are the relevant facts?” and a very detailed timeline contained in a 204-page appendix.
The Brookings report appears to be partisan and excludes relevant details at various points. For example, the report notes that Fusion GPS and Christopher Steele, the author of the dossier, were hired by “political opponents of President Trump.” The report fails to mention that Fusion GPS had been hired by Perkins Coie on behalf of the DNC and the Clinton campaign.
The report’s partisan nature was more or less acknowledged in the preface of the second edition:
“In what is perhaps a reflection of the strength of the evidence that can now be marshaled against the president, his defenders have shifted the fight in large measure away from the merits of the obstruction case to a series of questionable defenses based upon the possible consequences of even a meritorious case. In many ways, the question has become less about whether there is a case that Donald J. Trump obstructed justice, and more about whether and in what form the rule of law will be followed.”
The second edition also contains a section dedicated solely to exploring the use of Section 1512—and as the authors note, they did so specifically because 1512 could be applied toward “obstruction” of potential and possible future proceedings:
“Because a ‘proceeding’ need not be ‘pending or about to be instituted’ for Section 1512 purposes, President Trump’s conduct could have been intended to influence a ‘proceeding’ under the statute if a grand jury investigation was foreseeable even if the obstructive behavior took place before a grand jury investigation actually commenced.”
On page 148, the Brookings report discusses the issue of referring the Mueller report directly to Congress:
“Even though there is no prescribed mechanism for Mueller to refer a case to a congressional committee, there are two options for effectuating a referral that are grounded in precedent. Mueller could ask a grand jury to seek permission from the district court in which it is convened to transmit a Report to the House Judiciary Committee. Alternatively, Mueller could file a report with Deputy Attorney General Rosenstein and recommend that he refer the matter to Congress.”
Although the Brookings report strives to make its case regarding congressional referral, at each turn, it is forced to acknowledge that any referral option would be subject to the authority and oversight of then-Deputy Attorney General Rod Rosenstein, who specifically had the ability under special counsel regulations to block any action he deemed “inappropriate or unwarranted under established Departmental practices.”
There are several hurdles to actually making a charge of obstruction against the president.
To start with, the president was told on three separate occasions by then-FBI Director Comey that he wasn’t personally under investigation by the FBI. Therefore, Trump couldn’t have obstructed an investigation of himself, since he didn’t know there was an investigation to begin with.
Regarding claims that Trump obstructed an investigation into individuals other than himself, there would need to be a rationalization against presidential pardon authority. In other words, if Trump maintains full pardon authority for federal crimes, how can anything he does become obstruction in cases relating to others?
Report Authors Retained by House Judiciary Committee
On Feb. 12, 2019, Nadler announced that two of the Brookings report authors, Berke and Eisen, had been retained on a consulting basis as special oversight counsels to the Democrat majority staff. The two men were appointed as consultants to the House Judiciary Committee on Feb 12, well in advance of the April 18 release of the Mueller report.
Nadler noted that Berke and Eisen “will consult on oversight matters related to the Department of Justice, including the Department’s review of Special Counsel Mueller’s investigation, and other oversight and policy issues within the Committee’s jurisdiction.” Berke took a leave of absence from the law firm of Kramer Levin, where he is a partner, in order to take the appointment.
Nadler’s hiring of Eisen and Burke appears to have been intended to go beyond the two men serving as advisers to the House Judiciary Committee. The committee had been arguing for the use of staff lawyers during testimony from AG Barr that was scheduled for May 2, 2019. Barr ultimately declined to attend the hearing—leading to a Democrat vote to hold Barr in contempt.
It appears that Nadler had intended for Eisen and Burke to lead the questioning of Barr personally. Rep. Steve Cohen (D-Tenn.) commented on Barr’s absence in an impromptu press conference on May 2:
“Chicken Barr should have shown up today and answered questions. He was afraid of Barry Burke. He was afraid of Norm Eisen. An attorney general who was picked for his legal acumen and his abilities would not be fearful of any other attorneys questioning him for 30 minutes.”
The Hill also reported on the House Judiciary Committee’s planned use of Eisen and Burke, noting:
“The committee wanted Barr examined by staff lawyers, including Norm Eisen, who handled ethics questions for President Obama. Eisen had declared months ago that the criminal case for collusion was devastating and that Trump was ‘colluding in plain sight,’ a position expressly rejected by Mueller.”
Eisen has penned a number of op-eds against Trump, including a Dec. 7, 2018, New York Times article, “Is This the Beginning of the End for Trump?“, co-written with his fellow Brookings report authors Berke and Bookbinder.
William Barr’s Foresight
As previously mentioned, Section 1512 is a rather obscure statute, a fact inadvertently highlighted in two separate letters sent by Trump’s lawyers to Mueller. In both letters, one from June 23, 2017, and the second from Jan. 29, 2018, the president’s lawyers address the matter of obstruction. Section 1505, the standard for obstruction, is mentioned in the letters 39 times. Section 1512 isn’t mentioned once. Clearly, Trump’s lawyers hadn’t anticipated the use of Section 1512 by the special counsel team.
But apparently, there was one individual who had foreseen its possible use. On June 8, 2018, Barr, who was then a lawyer in private practice, sent a lengthy memo to Deputy AG Rosenstein and Assistant AG Steve Engel. This quiet battle between Mueller and Barr over the use of Section 1512 was first highlighted in an article by Will Chamberlain of Human Events.
Barr’s memo, which contained the subject line “Re: Mueller’s Obstruction Theory,” noted, “It appears Mueller’s team is investigating a possible case of ‘obstruction’ by the President predicated substantially on his expression of hope that the Comey could eventually ‘let. .. go’ of its investigation of Flynn and his action in firing Comey.
“It appears Mueller is relying on 18 U.S.C. § 1512, which generally prohibits acts undermining the integrity of evidence or preventing its production.”
Barr appeared generally alarmed by the liberal application of the statute, rightly observing that “any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.”
Barr noted the spiraling outcomes that could come from such use of the statute and how its effects would ripple throughout the Department of Justice (DOJ):
“Simply by giving direction on a case, or class of cases, an official opens himself to the charge that he has acted with an ‘improper’ motive and thus becomes subject to a criminal investigation.”
Mueller ultimately failed to provide a determination on obstruction directly, leaving the decision up to Barr, who, along with then-Deputy AG Rosenstein, ruled that there was no obstruction by the president. Barr recently addressed the matter further in an interview with CBS News’ Jan Crawford.
Barr noted that Mueller took into account the Office of Legal Counsel (OLC) opinion that a sitting president couldn’t be indicted, but also included “a number of other prudential judgments about fairness and other things and decided that the best course was not for him to reach a decision.”
Barr said that he believed Mueller could have reached a conclusion on obstruction, and stated both he and Rosenstein were surprised when Mueller didn’t do so.
Barr also said that he and Rosenstein didn’t agree with much of the legal analysis contained in the report and felt it represented the “views of a particular lawyer or lawyers and so we applied what we thought was the right law.”
Barr pointed out that in order for the determination of a crime, the DOJ would have had to prove corrupt intent, noting that “the report itself points out that one of the likely motivations here was the president’s frustration with Comey saying something publicly and saying a different thing privately, and refusing to correct the record.”