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Facts Matter

What the law says about "obstruction of justice"

Pablo Martinez Monsivais / AP

The issue

Trump is being investigated by Special Counsel Robert Mueller for possible obstruction of justice for his actions during the Trump-Russia probe.

The facts

Obstructing justice is when someone intentionally interferes or attempts to interfere with an ongoing investigation with corrupt intent, according to U.S. Code Chapter 73. Punishments can range from fines or imprisonment up to 20 years (or both). The federal code has 21 statutes laying out the different ways to obstruct justice, including:

  • Tampering with, retaliating against or intimidating a witness, victim, or informant
  • Influencing or injuring an officer of the U.S. or a juror
  • Falsifying or stealing records
  • Someone who "obstructs, influences, or impedes any official proceeding" — or even if they attempt to do so

Why it matters

Applying this federal code to POTUS is mostly "new ground," Politifact says. It can be narrowed to two statutes that could apply here:

  • Obstruction of Justice as applied to Comey's firing: The 5th statute, which focuses on the corrupt interferences in proceedings before a department, agency, or committee, could apply to Comey's firing, but the Supreme Court has never ruled on whether an FBI investigation qualifies as a proceeding.
  • Obstruction as applied to Flynn's grand jury subpoenas: The 3rd statute is also relevant since it focuses on the obstructor of justice being aware of a judicial proceeding before interfering — and the grand jury subpoenas about Flynn's lobbying went out hours before he fired Comey.

Prosecuting a POTUS on these grounds is "a longshot," Politifact notes, and would have to meet the criminal case standard of "beyond a reasonable doubt."

Go deeper: The DOJ Office of Legal Counsel determined in 1973 and 2000 that you can't prosecute a President because it limits the White House's ability to function. "[O]nly the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment," per the code.

The common thread here is that to pin down "obstruction of justice," it has to have been driven by corrupt motives. There are a wide variety of actions that could be considered obstruction, but only if they're shown to have been done for nefarious reasons, and the evidence — like Comey's memo or any White House tapes, which Senators have subpoenaed — will be key.

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