Daniel Hemel on Trump's Tweet and the Case for Obstruction

Trump may have just given a big boost to Mueller’s case against him

“The obstruction case against Trump is more solid if there is strong evidence that he recognizes legal jeopardy,” Daniel Hemel, an assistant law professor at the University of Chicago who recently co-published a useful scholarly exploration of presidential obstruction of justice, told me this morning.

To be clear, as Hemel points out, even if Trump did recognize legal jeopardy, it could still be very hard to prove that Trump obstructed justice. Trump has tried to scuttle the investigation in all kinds of ways, from firing his FBI director to demanding that his attorney general protect him from the probe to ordering the firing of Mueller. But to show criminal obstruction of justice, Mueller would have to demonstrate that Trump acted with “corrupt intent” in doing those things — say, for the express purpose of protecting his cronies (such as his son) from investigation.

Trump may have done some or all these things because he feared that his son is in jeopardy, or more broadly because he believes the Trump Tower meeting (and any other collusion that may have occurred) may implicate his whole campaign in potentially illegal behavior. But we don’t know that, and it has to be proved.

“This doesn’t bring us all the way,” Hemel says. “We have a reason for him to do it. But that’s not the same thing as intent. This allows us to generate a hypothesis about what may have been in Trump’s head. But Mueller would still want more. You’ve got the two dots. But you still have to connect them.” So we have no idea whether Mueller will conclude that Trump committed criminal obstruction, and beyond this, even if he did, he almost certainly would not prosecute the sitting president.

Read more at The Washington Post

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