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Obstruction of justice is difficult to prove, legal experts say

Special counsel Robert Mueller departs St. John's Episcopal

Special counsel Robert Mueller departs St. John's Episcopal Church, across from the White House, after attending morning services, in Washington on Sunday. Credit: AP / Cliff Owen

WASHINGTON — Special counsel Robert Mueller’s decision not to render a legal decision on whether President Donald Trump attempted to obstruct the Justice Department’s Russia probe underscores the difficulty of proving obstruction of justice cases, said former federal prosecutors and legal experts.

“They are hard cases to prove in that primarily you are trying to prove what’s inside someone’s head,” said Randall D. Eliason, a law professor at George Washington University Law School in Washington D.C., and a former federal prosecutor who oversaw public corruption and government fraud cases.

Attorney General William Barr, in a four-page summary of Mueller’s principal conclusions of the Russia investigation, said Muller found no evidence that Trump or his campaign criminally conspired with the Kremlin to influence the 2016 election, but Mueller stopped short of issuing a conclusion on whether Trump attempted to obstruct the Russia investigation.

Mueller, according to Barr, stated: “While this report does not conclude that the president committed a crime, it also does not exonerate him.”

Without a resolution from Mueller, Barr and Deputy Attorney General Rod Rosenstein were left to determine whether or not there was sufficient evidence to charge Trump with obstruction of justice. Ultimately both said they “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

“In cataloging the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct,” Barr wrote.

The decision by the top two Justice Department officials prompted some Democrats to question whether Barr’s decision was made out of loyalty to his new boss. Congressional Democrats, pointing to Mueller’s words that the report “does not exonerate” Trump on the issue of obstruction, have called for the full disclosure of Mueller’s work.

“Special Counsel Mueller clearly and explicitly is not exonerating the President, and we must hear from AG Barr about his decision making and see all the underlying evidence for the American people to know all the facts,” House Judiciary Chairman Jerrold Nadler (D-N.Y.) said in a tweet.

Eliason, who has been writing about the Mueller case on his legal blog, said, “Barr's conclusion that Trump's conduct did not mount to criminal obstruction is probably defensible.”

“There could be a lot of things that might look to the outside world like [Trump] was trying to mess with the investigation or interfere with it somehow but that wouldn’t rise to the level of obstruction,” Eliason said, citing as an example Trump’s barrage of tweets calling for an end to the probe and disparaging those involved with the investigation.

While Trump’s critics have pointed to the president’s firing of former FBI Director James Comey as evidence Trump attempted to interfere with the direction of the Russia probe, Eliason noted “if you look at what happened, of course, it didn’t obstruct it at all.“

“Everything kept going and, in fact, that’s what got Mueller appointed, so if anything firing Comey led to a more rigorous investigation,” Eliason said.

Eliason, who served as chief of the Public Corruption/Government Fraud section of the U.S. attorney’s D.C. office, said he could “understand why a prosecutor might hesitate bringing this case as a criminal matter just because of all the difficulty with proving corrupt intent.”

Alex Whiting, a professor at Harvard Law School and a former federal prosecutor, said “obstruction of justice cases are famously hard to prove.”

“It’s hard to prove because you have to prove a corrupt intent — not just that you blocked the investigation or that you made it more difficult, but that you did it corruptly with bad intent,” Whiting said.

Part of the Justice Department’s challenge in proving obstruction of justice occurred is that Mueller’s probe concluded that Trump did not commit any crimes in relation to Russia’s attempt to meddle in the 2016 election, Whiting said.

“If you’re destroying evidence or interfering with witnesses, because you’re trying to cover your tracks because you’ve committed a crime, juries get that, but if you can’t prove that [a crime was committed], then juries feel more like you’re just defending yourself, and maybe, just maybe you crossed the line a little bit, but gosh it feels more like a technical violation than a real criminal charge.”

Jens David Ohlin, vice dean at Cornell Law School, offered a different view, saying “there was enough evidence in the public record to demonstrate that Trump engaged in obstruction of justice.”

Congressional Democrats have long pointed to Trump’s tweets calling for an end to the probe and denouncing those involved, as evidence of obstruction and an attempt by Trump to intimidate possible witnesses.

“Barr's argument is bizarre: that Trump didn't obstruct justice because there was no evidence that he participated in a conspiracy over Russian interference. One doesn't follow from the other,” Ohlin said. “An individual can certainly be guilty of obstruction of justice even if the individual isn't guilty of another crime. It's enough that the investigation was threatening individuals within Trump's inner circle.”

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