Last December, New York Magazine put together a list of 19 incidents where Trump could be construed to be obstructing justice. That was before we knew of the abortive Mueller firing and the depth of Trump's attacks on McCabe, Wray, and other officials in the FBI. But, as we have heard for most of the weekend, in order to prove that Trump actually obstructed justice, it will be necessary to show the he had "corrupt intent". Usually intent is incredibly hard to prove but, with Trump, we not only see a pattern of behavior that fits into obstruction but Trump's own words have shown that many of his actions were driven by the desire to shut down the Russia investigation, words that belied the earlier stated reasons given.
But you can already see the President's defense against the obstruction charge building. Mueller may have lots of testimony from multiple sources about Trump's statements and frame of mind during many of the potential obstruction of justice episodes. But, as Chis Hayes noted on All In on Friday night, Trump has a remarkable penchant for not remembering conversations and details both when under oath and when pressed by reporters about discussions regarding the Russia investigation. When being deposed in the Trump University case, Trump replied with the "unable to remember" defense 35 times.
The other part of the defense against "corrupt intent" is that all this sturm und drang is simply Trump being Trump. Trump himself describes it as simply "fighting back" but not obstruction. Under this theory, threatening to fire people and railing that the investigation needs to be shut down is simply normal Trump behavior, not any indication of real intent. As one former senior adviser during the Trump campaign says, "Some people still either don’t understand the difference between the president’s bark and his bite, or they’re more than willing to take advantage of the bark to assume that it was a bite. Trust me, everybody on the campaign was ‘fired’ more than once, but it never really happened."
Michael Wolff actually supported this theory in his interview with Lawrence O'Donnell on Last Word. He described Trump's continual ranting and demands to fire everyone involved in the Russia investigation as basically "wallpaper", a kind of white noise that was permanently droning on. A similar take came from Joe Manchin today when he described Trump's attempt to fire Mueller as simply "New York talk".
Others defend Trump, claiming that all he is looking for is loyalty among his subordinates and that does not constitute obstruction of justice. One of those defenders, Newt Gingrich, a man who embodies the Republican destruction of our constitutional and democratic rules and norms, says, "Of course the president ought to be able to expect loyalty. He is the chosen president of the United States by the American people, and he is the chief executive. If they’re not loyal to him, who the hell are they supposed to be loyal to?" The answer, of course, is not a who but a what, and that is the Constitution of the United States. Certainly, Trump has every right to fire someone who disobeys a lawful order but he has no right to force someone to obey an unlawful order or to pervert the course of justice.
"Mens rea" is one of the most important concepts in criminal law. Essentially, a crime is only committed when the accused committed it with "criminal intent, purpose, knowledge, belief, recklessness, or the like." Without that "guilty mindset", there is no crime, unless the criminal statute specifically states otherwise. For many crimes, such as drug trafficking, burglary or shoplifting, the act itself is enough to show that criminal intent. That intent is often harder to discern in actions that may be what we call white-collar crimes.
White-collar crime has no real definition. According to one scholar, "a white collar crime should be defined by reference to what it is not: a crime that “(a) necessarily involve[s] force against a person or property; (b) directly relate[s] to the possession, sale, or distribution of narcotics; (c) directly relate[s] to organized crime activities; (d) directly relate[s] to such national policies as immigration, civil rights, and national security; or (e) directly involve[s] ‘vice' crimes or the common theft of property". It usually, but not always, involves financial crimes of one sort or another. As opposed to the crimes mentioned above, however, the act itself is often not enough to show intent. In fact, the vast majority of white-collar cases revolve around the question of intent because the underlying actions themselves are not necessarily crimes.
This almost exclusive focus on intent is exactly why it is so hard to prosecute white-collar crime. And, as we see with Trump, it is very easy for a defendant to try and obfuscate his actual mindset. Richard Scrushy was the CEO of a company called HealthSouth, a global healthcare company. After an FBI investigation of the company in which five consecutive chief financial officers of the company admitted to cooking the books and all claimed Scrushy not only knew about the ongoing fraud but also pressured them to do so, Scrushy was indicted on multiple counts of conspiracy, money laundering, and mail and securities fraud. He was the first CEO to be prosecuted under Sarbanes-Oxley, a bill passed in the wake of Enron's collapse to make CEOs actually accountable for the fraud in their companies. Yet Scrushy managed to be acquitted on all counts, primarily by focusing on the fact that he was too busy trying to build his dream company to focus on those financial issues and the prosecutors could produce no physical evidence linking Scrushy to the accounting fraud. Scrushy was also aided by his appeal to the local jury pool in Birmingham where the company and the trial were located. In the end, he was acquitted on all counts. He was subsequently convicted of other crimes relating to a bribery scandal involving the Alabama governor.
In many ways, obstruction of justice is just another form of white collar crime where intent actually determines the crime. Considering that Trump will probably not be indicted but rather recommended for impeachment by Congress, the fact that Republicans will be the majority of the so-called jury pool and that most of them are already inclined to give Trump the benefit of the doubt, it is highly likely that Trump's fate will be the same as Richard Scrushy's in his original trial, acquittal.
There are really two lessons here. First, Robert Mueller really needs something more than obstruction of justice to bring down Trump. Money laundering would seem the more likely candidate at this point, even more than collusion with Russia. Second, Americans need to think long and hard about how we can put more teeth into prosecuting white-collar crime instead of having to almost exclusively rely on divining intent. That focus actually encourages a degree of willful ignorance, especially by corporate executives who "know" what's going on but don't want to know the details. It is clear that, at least in the securities industry, Sarbanes-Oxley has been a total failure considering all the Wall Street executives that have walked away scot-free over the last decade. That would mean strengthening the law to make certain acts themselves evidence of guilty intent as exists in much of the current blue-collar criminal statutes.
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