You can take it to the bank: Donald J. Trump, the 45th president of the United States, is being investigated for obstruction of justice in connection with the May 9 firing of former FBI Director James Comey. It’s happening.
Leading the charge is another former FBI head with a reputation for doggedness and detail — Robert S. Mueller III. Appointed to the position of Justice Department special counsel on May 17, Mueller has been given a broad mandate to explore
any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and … any matters that arose or may arise directly from the investigation.
To carry out his assignment, Mueller has assembled a formidable cast of 13 seasoned current and former prosecutors, who have worked on a variety of federal corruption probes, ranging from Watergate to Enron. According to reports, Mueller may hire still more. Plainly, he’s gearing up for the long haul.
The question no longer is whether Trump is personally the target of an official federal probe, but how the probe will end.
For supporters of Hillary Clinton, Mueller’s appointment and the widening of the Russia investigation to include obstruction are an unambiguous godsend, confirmation that the election was stolen from Clinton and that an erratic incompetent—or worse, a Putin dupe—has been installed in the White House. From this perspective, removing Trump from office via a threatened prosecution, impeachment or the mechanisms outlined in the 25th Amendment is the first step toward restoration of the neoliberal order.
For the progressive left—defined, for purposes of this column, as all who seek an egalitarian and humane alternative to both neoliberalism and Trump’s regressive nationalism—the obstruction issue presents a more nuanced challenge. On the one hand, progressives have a rare opportunity to play a role in ridding the country of a burgeoning autocrat. On the other, depending on how they engage, they run the risk of being reduced, once again, to bit players and minor voices in the nation’s political life, subservient to the Clinton wing of the Democratic Party.
How, then, should progressives position themselves as the obstruction battle unfolds? Although there are no easy, much less final, answers, this much appears clear:
We Can’t Afford to Sit Back and Watch From the Sidelines
This is a historic moment. While presidents are routinely charged with bad acts and foolish policies, there is nothing routine about the obstruction probe Trump is facing. Obstruction of justice allegations formed the core of the articles of impeachment passed against Bill Clinton and the impeachment articles that forced the resignation of Richard Nixon but were never formally voted on by the full House of Representatives.
The Trump obstruction controversy is of similar magnitude. It isn’t just another passing skirmish between warring camps of the American oligarchy, or fodder for cable news. It represents a struggle both to preserve constitutional norms and to redefine the meaning and reach of presidential power for the 21st century. We have an obligation to speak up, and, wherever possible, actively shape the terms of the public debate.
We Need to Master the Legal Basics of Obstruction
To participate effectively in the debate, we have to inform ourselves and the audiences we reach about the law of obstruction. You don’t need a law degree from Harvard to do that and to begin educating others.
I devoted my last two Truthdig columns to this effort. (See those columns here and here.) As I outlined, the relevant federal laws are found in Title 18, sections 1501 through 1521, of the United States Code. In all, the code sets out 21 separate obstruction crimes.
In those columns, I focused on section 1505, which makes it a felony to “corruptly” influence, obstruct or impede, or attempt to influence, obstruct or impede, any pending proceeding before a federal agency or Congress. The firing of Comey would fit within the statute, if the firing was done with the intent to influence the FBI’s investigation into alleged Russian meddling with the presidential election. In a prime-time interview with NBC news anchor Lester Holt on May 11, Trump all but conceded he dismissed Comey because of “the Russia thing” and because of Comey’s refusal to state publicly that Trump was not a target of the investigation.
Last week, Dan Coats, director of national intelligence, added more fuel to the obstruction fire. According to NBC News, Coats told House Intelligence Committee investigators that “Trump seemed obsessed with the Russia probe and repeatedly asked him [from March on] to say publicly there was no evidence of collusion” between the Trump campaign and Russia.” Coats declined.
As has been true from the outset, the president has been his own worst enemy, taking to Twitter and Fox News to denounce the probe, the “fake media,” Comey, Mueller and many others when he should have exercised caution and remained silent.
Trump’s latest unforced error occurred on June 22, when he disclosed in a pair of tweets that he had not taped any of his White House meetings with Comey. He had raised the possibility that he had done so in an unhinged tweet on May 9 warning that “James Comey better hope there are no ‘tapes’ of our conversations before he starts leaking to the press!”
In a June 23 interview on his favorite TV show, Fox & Friends, Trump indicated, in response to a leading question from one of the hosts, that his May 9 tweet had been designed to “make sure Comey stayed honest” in any subsequent testimony or public disclosures. Because Comey might have thought their conversations had been taped, Trump speculated, “I think his story may have changed” in a way that made it less damaging. In other words, Trump was trying to exert his influence.
In fact, however, Comey’s story didn’t change or become less damaging. Quite the opposite happened. In his June 8 Senate testimony, Comey repeatedly characterized the president as a “liar” and laid out a detailed scenario of presidential pressure-tactics and obstruction. Far from helping his cause in the obstruction probe, Trump’s Fox & Friends appearance only damned him further, not only damaging his already greatly diminished credibility, but also opening yet another obstruction angle for Mueller and his colleagues to examine—that of witness intimidation under section 1512(b) of Title 18.
The obstruction probe is part of the larger investigation into alleged Russian interference with the election. It will take many months to conclude. In the meantime, progressives will need to keep up with the facts and informed on the law.
This Isn’t McCarthyism
One of Trump’s preferred defenses to the obstruction allegations confronting him is to claim he’s the victim of “the single greatest witch hunt in American history!”
He isn’t, at least not by any rational definition.
McCarthyism, named after the late Wisconsin Republican Sen. Joseph McCarthy, was the second “red scare” of the 20th century. It was a systemic purge in public and private sectors of individuals suspected of membership in the American Communist Party—or those suspected of being in sympathy, often in the vaguest and most overbroad ways, with the general aims and philosophy of the party. As a result of the purge, which lingered into the early ’60s, thousands of people lost their jobs and were blacklisted from working in government, academia, the film industry, union organization and other endeavors. It was a time of loyalty oaths, deadening political debate, social conformity and widespread hysteria.
Even if no hard evidence of collusion between the Trump campaign and Putin is uncovered and it can never be established that Russian meddling affected the outcome of the election, holding Trump accountable for his actions is not McCarthyism. To begin with, there is ample probable cause for conducting the wider Russia investigation. Someone hacked into the computers of the Democratic National Committee in violation of the federal Computer Fraud and Abuse Act. It’s the job of the FBI and the Justice Department to determine who the culprits are. There is also probable cause, courtesy of the president’s own intemperate statements on social media and elsewhere, to investigate Trump personally for obstruction.
Instead of joining Trump and his Fox News sycophants in invoking the specter of McCarthyism, as a few on the left arguably have, progressives would be better advised to demand the truth from Mueller and the House and Senate intelligence committees, no matter where the truth leads. If there’s proof of Russian interference or collusion, we need to hear it. If there’s none, we need to hear that, too, loud and clear. We also need to hear the truth about U.S. interference with elections in other countries. Progressives are never more influential than when they act as arbiters of the truth.
Progressives Should Link Obstruction of Justice to Trump’s Overall Agenda and Abuse of Power
Obstruction of justice is not a stand-alone issue. Trump’s dismissal of Comey didn’t happen in a political vacuum. The firing was an abuse of power, and abuse of power is what the Trump presidency is all about.
The list goes on and on: Whether it’s enriching himself by means of transactions with foreign governments in violation of the Constitution’s emoluments clause; pursuing a legal agenda calling for reinstituting the war on drugs, expanding mass incarceration and encouraging the growth of private prisons; defunding Planned Parenthood, obliterating Obamacare, dismantling the EPA, pulling out of the Paris climate accord; or imposing a Muslim travel ban, scapegoating the undocumented and punishing sanctuary cities, Trump has abused his authority and mounted an uncommon and unrelenting assault on the social safety net, human rights and constitutional norms.
No sector in American political life is better suited than the progressive left to connect the dots between the constitutive elements of Trump’s agenda and the obstruction issue. Abuse of power is the thread that unites them all.
Think Big and Look Forward
Typically, criminal investigations look backward. In narrow legal terms, this is true of the Trump obstruction probe and the Comey firing. Mueller and his team will follow the evidence, asking whether, when all the relevant witnesses have been deposed and all the pertinent documents have been examined, Trump acted with the “corrupt” intent required for a conviction.
For the people as a whole, however, as momentous as a finding of obstruction might be, removing Trump from office will be a hollow victory if all it leads to is the installation of another repressive Republican or a Clinton clone.
Americans, like many people across the globe, want something new, different and better. They crave a vision of the future that, as I’ve written before in this column, is “communitarian, diverse, inclusive, respectful of democratic institutions and the environment, and welcoming toward individual freedoms.” The right can’t offer such a vision. Neither can the neoliberals. It remains to be seen if the progressive left can fill the void.
[This column was originally published by Truthdig.com]