This isn't the Mueller probe. Why Trump charges in DOJ case aren't out of the question.
The ease of proof makes obstruction of justice an attractive charge for the Department of Justice. And this time, Trump may lack the means to wiggle out of it.
Among the statutes cited in the search warrant for former President Donald Trump's Mar-a-Lago residence is one that prohibits obstruction of justice. That offense may sound familiar because it was one of the potential crimes investigated during Trump’s presidency by special counsel Robert Mueller.
This time, though, the charge could actually stick.
Complex crimes can be difficult to prove, but ham-handed efforts to intimidate witnesses or conceal documents can be comparatively simple. Mueller was unable to find sufficient evidence to prove that Trump conspired with Russia to interfere in the 2016 presidential election, but he found 10 instances of potential obstruction of justice.
Among the acts Mueller examined were Trump’s efforts to dissuade witnesses like Paul Manafort, Michael Flynn and Michael Cohen from cooperating against him. Mueller also investigated Trump’s directive to former White House counsel Don McGahn to create a false document to conceal Trump’s order to fire Mueller.
Obstruction of justice is a serious charge
Obstruction of justice is no tail wagging the dog – a conviction carries up to 20 years in prison, a reflection of the harm it causes to the integrity of the criminal justice system.
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But because Department of Justice policy prohibits charging a sitting president, Mueller declined to make a "traditional prosecutorial judgment" in his final report, stating instead that "while this report does not conclude that the President committed a crime, it also does not exonerate him."
Attorney General William Barr seized the opportunity and made the decision himself, concluding that Trump had not committed obstruction of justice.
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Now the investigation into classified documents stored at Trump's Mar-a-Lago estate seems to be progressing. In a court filing Tuesday night, the Department of Justice said that government records "were likely concealed," and that "efforts were likely taken to obstruct the government’s investigation."
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This time around, the former president might not be so lucky for a number of reasons:
►Trump is out of office. Mueller refrained from even accusing Trump of a crime because of the Justice Department's policy. The reasoning behind the policy is that a president who had to defend against criminal charges would be too distracted to perform presidential duties. Now that Trump’s term is over, he no longer has that shield.
►Trump has lost his loyalists in DOJ leadership. A recently unsealed memo shows the reasoning for Barr’s decision that Trump should not be charged with obstruction of justice relating to the Russia investigation. The fundamentally flawed memo, written by two top DOJ officials, reads more like a defense brief than an objective analysis of the law, prompting the district judge who reviewed it to call the decision a predetermined conclusion. This time around, Trump lacks officials at DOJ who will reverse-engineer decisions to his advantage.
►Trump's attorney said documents were returned. Recent reporting indicates that one of the former president's lawyers signed a statement in June attesting that all of the classified documents had been returned, but when FBI agents showed up for the search in August, they walked out with 20 more boxes. Federal law makes it a crime to conceal documents with intent to obstruct an investigation or the proper administration of a matter within the jurisdiction of a federal agency, such as the National Archives and Records Administration. Proving the case is as simple as showing a jury the declaration signed in June and the boxes found there in August. If the lawyer signed the declaration based on false information provided to her by Trump, then he could be guilty under a theory of accomplice liability or for using an unwitting agent.
►Obstruction might be a more palatable charge. Proving a violation of the Espionage Act would require evidence that the documents contained national defense information. The only way to establish that element is to show the actual documents to a jury. If the documents are as sensitive as their top secret classification level indicates, then DOJ will be reluctant to risk their exposure at a trial and jeopardize national security. But an obstruction of justice charge could be proved without delving into the contents of the documents. It would be enough for a witness to testify that when the boxes were recovered, some of the documents bore classified markings.
The ease of proof makes obstruction of justice an attractive charge for DOJ. And this time, Trump may not have the ability to wiggle out of it.
More from Barbara McQuade:
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Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, is a professor at the University of Michigan Law School, an NBC and MSNBC legal analyst, and a member of USA TODAY's Board of Contributors. Follow her on Twitter: @BarbMcQuade