WHO NEEDS ‘DEEP THROAT’? WE HAVE TRUMP
Willendorf Revisited, Watercolor, 36" x 50", Richard J Van Wagoner, 1994, Courtesy of Van Wagoner Family Trust**
Trump’s weeks don’t seem to be getting better. Maybe the hero’s welcome in Saudi Arabia will improve his mood. The Saudis have a form of government he admires, an absolute monarchy which makes it up as it goes, unburdened by something as menacing and restrictive as a constitution. That one thing about Sharia Law could be an obstacle for Trump who believes women are made for his seeing pleasure or derision (one of a variety of invasive objectification he reserves for his interactions with them). After the Saudis, he’s off to Israel, whose super-classified intelligence he shared with the Russians to make himself look super cool. The world waits to see if Israel is as amused as his pals from Russia. As distraction he’ll just have to keep up the tough talk about Iran. The Pope won’t much help. He’s a Christian, the real unevangelical kind that believes in the Sermon on the Mount and the type of unconditional love Paul discusses in Two Corinthians. And he’s not in favor of The Wall or, frankly, much of what Trump exemplifies or seems to advocate in the moment — anti-Muslim, anti-immigration, anti-refugees, anti-sanctuary cities, anti-Christ.
The following quote comes from a prior post in which I characterized what then seemed a bad week. If Trump could only have that week back:
In the midst of its disassembly, the Administrative State hasn’t had the best of weeks. Weeks can’t all be great. The reprieve was welcome, in any event, after all that winning. Plus we now need to catch our collective breath after the FBI’s Comey testified about the Bureau’s targets of investigations and the House Permanent Select Committee on Intelligence’s Nunes violated his Oath of Office by serving two masters.
Now we have it on fairly credible authority that campaigners and White Housers are wiping clean their phones. Thank god for encrypted apps. For some of the ensnared, the cover-up could be worse than any crime because it may suggest knowledge or some lower-level complicity. For others the gravity of the crime would likely far outstrip any effort to hide it. In the hierarchy of crimes, Article 2, Section 4 of the Constitution is a good place to start. Bribery, Treason, other High Crimes and Misdemeanors.
(http://lastamendment.com/2017/03/26/last-amendment-xiv/ Wall to Wall Carpet Bombing, The Sub-Text of Trump’s Immigration Policy: Indiscriminate Collateral Damage)
TRUMPSTRUCTION OF JUSTICE
What is obstruction of justice? The Congressional Research Service has a fairly comprehensive article discussing the six most common forms of obstruction. It states:
Obstruction of justice is the impediment of governmental activities. There are a host of federal criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and common law).
https://fas.org/sgp/crs/misc/RL34303.pdf
In my experience, a prosecutor’s greatest burden in specific intent crimes is proving intent itself. Did the defendant intend to defraud? Even with the best of intentions, investments fail, companies fail, projections are wrong, plans fail. In financial crime cases, for example, the question often is not who committed the crime but whether a crime was even committed. Guilt will depend on the defendant’s state of mind, his “intent.” The laws in those types of cases usually are meant to punish someone who has a corrupt state of mind when he engaged in the conduct. Seldom does a defendant say, “yes, I meant to deceive those people out of their money. I tricked them out of their retirement, never intending to use the money as promised or represented.”
So prosecutors use evidence that surrounds the issue (circumstantial) to try to convince the trier of fact to draw the proper inferences of specific ill intent. Obstruction of justice makes the prosecutor’s job easier. The cover-up may not be as bad as the underlying crime, but it often opens a window into the defendant’s mind, approaching “direct” evidence of criminal intent.
As you read the criminal obstruction statutes below please consider whether Trump had legitimate, lawful purposes for his conduct; or whether he engaged in deliberate interference with, or corrupt persuasion to impede or derail, an investigation; or whether he attempted to do any of the latter.
The New York Times doesn’t think we are there yet, but momentum for the White House mutiny is growing. If the ship of state sinks, staff leaks will have had very little effect. It will be Trump’s self-inflicted torpedoes. In other words, a trier of fact may not have to draw many inferences from surrounding evidence and will hear it directly from the horse’s mouth, so to speak, or read it from his prolific Twitter feed. That could simplify a prosecutor’s job in proving both crimes.
New Jersey Tenements, Watercolor, 21" x 29", Circa 1988, Courtesy of Van Wagoner Family Trust**
A few highlights:
• Trump terminated Acting Attorney General of the United States Sally Yates after she warned the White House at least three times about Flynn’s having been seriously compromised. That was after the prior administration had warned Trump about Flynn’s compromised status. Regardless, Trump appointed and then refused to terminate Flynn as his National Security Adviser until he had no choice. F%#ing leaks. In fairness, however, the given reason for Ms. Yates’ termination was her refusal, on constitutional grounds, to defend and seek to enforce the Executive Order banning refugees and immigrants from certain Muslim countries.
• Before he was appointed Flynn himself, on at least two occasions, informed the White House he was under criminal investigation.
• Trump took steps to prevent Sally Yates from testifying before the House Intelligence Committee about Flynn.
• Comey testified before the House Intelligence Committee the FBI has an active counterintelligence investigation into Russia’s election meddling.
• Comey testified before the House Intelligence Committee the FBI has an active investigation of the Trump campaign for potential ties to the Russian meddling — collusion.
• While he had the “made-up” “Russia thing” on his mind, Trump fired FBI Director James Comey.
• If you choose to believe Comey over Trump, Trump unsuccessfully sought to have Comey back off the Flynn investigation.
• Trump tweeted: “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
• If you choose to believe Comey over Trump, Trump asked for Comey’s “loyalty.”
• The Trump administration sought a public announcement by the FBI refuting or at least downplaying a report about Trump associates’ contacts with Russian intelligence.
• Trump informed his Russian friends who are targets of the FBI counterintelligence investigation that he terminated the “nut job” James Comey.
We do not yet know whether certain types of evidence of potential criminal wrongdoing exist such as tape recordings, documents or electronic communications or whether any such evidence has been secreted, withheld or destroyed as part of a cover-up. Assuming the verifiable existence of such evidence, its destruction (most likely a crime itself) would help establish the “intent” element of an underlying crime.
Untitled, Woodcut, 16.5" x 33", Circa 1985, Courtesy of Van Wagoner Family Trust**
The United States Code has a vast array of statutes criminalizing obstruction in almost every conceivable form.
18 U.S.C. 1505 provides in part:
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress —
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
18 U.S.C. 1512 provides in part:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to —
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to —
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . shall be fined under this title or imprisoned not more than 20 years, or both.
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from —
(1) attending or testifying in an official proceeding;
(2) reporting to a law enforcement officer or judge of the United States the commission or possible commission of a Federal offense . . .
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
Obstruction of justice itself is a specific intent crime, that is, the actor must have a corrupt or guilty state of mind when he engages in the types of conduct detailed in the obstruction statutes above. Did the actor engage in such conduct for the purpose of impeding, influencing, hindering or delaying the investigation of what might be an underlying crime? The fact that there is some other potential underlying crime makes the trier of fact’s job of proving obstruction easier because, in such a circumstance, fewer explanations justify actions that impede, influence, hinder or delay the investigation. The obstructive behavior and the underlying potential crime feed off each other for purposes of proof. Prosecutors love when defendants engage in obstructive behavior because it often reveals a defendant’s state of mind and helps prove the underlying crime. Why destroy, intimidate, threaten, secret, lie, interfere, or corruptly persuade, the argument goes, if you have nothing to hide or did nothing wrong?
Trump is behaving exactly as a guilty person would behave. But that may be just how he behaves. His malignant narcissism, extreme insecurity, lack of self-awareness, and utter dearth of ideology outside his own grandiosity might have something to do with it. It’s too bad when the fact finder must give the President of the United States the benefit of the doubt for his extreme mental illness and personality disorders.
Regardless of any underlying crime or any crime of obstruction itself, there will be no criminal charge against Trump while he is in office. More concerning, there will be no impeachment while the Republican legislators continue to breach their oaths of office in what once was an independent, co-equal branch of government that carried the constitutional burden to exercise an independent check on the others.
*My brother the fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in lastamendment.com are hers