Daniel Hemel in The Washington Post: Obstruction of justice doesn’t require another underlying crime

Barr is wrong: Obstruction of justice doesn’t require another underlying crime

It took special counsel Robert S. Mueller III nearly two years to conclude that President Trump may have — but may not have — obstructed justice. It took Attorney General William P. Barr and his deputy, Rod J. Rosenstein, only two days to decide that Trump should not be charged with obstruction. How did Barr and Rosenstein make up their minds so quickly on a question that the special counsel struggled with for so long?

Barr sent a letter to Congress on Sunday that offers little explanation for the decision not to prosecute the president. The letter correctly states the elements of obstruction of justice — corrupt intent, obstructive conduct and a sufficient nexus to a pending or contemplated proceeding — and then states that Mueller’s report “identifies no actions that, in our judgment,” satisfy all three criteria. The letter says nothing more about the last two elements of obstruction, but it does offer this about corrupt intent: “While not determinative, the absence of … evidence [of collusion] bears upon the President’s intent with respect to obstruction.”

That conclusion is questionable for reasons beyond its haste. It’s black letter law that a defendant can satisfy the corrupt intent criterion for obstruction even if the defendant himself committed no underlying crime. For example, the U.S. Court of Appeals for the 3rd Circuit recently ruled that a defendant could be convicted of obstruction “even if [his] primary motivation was to extricate the sister of his childhood friend from a troubled situation.” A court in Utah held in 2013 that a defendant could be liable for obstruction where his only apparent motive was to protect a friend from a criminal charge.

Read more at The Washington Post

# Mueller President Trump