Photo-Illustration: Intelligencer; Photo: Joe Raedle/Getty Images
the national interest

The Conservative Case for Letting Trump Obstruct Justice

A new legal doctrine emerges on the right.

Photo-Illustration: Intelligencer; Photo: Joe Raedle/Getty Images

Ever since he was sitting at his father’s knee and refusing repeated demands by the Justice Department to allow Black people to rent apartment buildings, Donald Trump has always believed the law does not apply to him. He acted accordingly both as president and as self-styled president-in-exile, treating any inconvenient law as a mere suggestion. Obstructing justice is a way of life for Trump.

The conservative Establishment has accommodated itself to this reality by developing a legal doctrine that obstruction of justice is not a crime, at least not if Trump is the obstructor.

This novel concept comes through in two documents that appeared last week, both explaining away different episodes of Trump obstructing justice. The first is a memo written at the behest of former attorney general William Barr, arguing against charging Trump with obstructing the Mueller investigation. The memo’s primary argument, which Barr used to dismiss Mueller’s findings, was that Trump’s obstruction of justice was not really obstruction because prosecutors were unable to prove he committed any underlying crime.

The main flaw in this line of reasoning is that Mueller may well have failed to prove a criminal conspiracy precisely because Trump obstructed his investigation. Specifically, he dangled pardons (and then subsequently delivered them) to Paul Manafort and Roger Stone, the two figures involved most directly in coordinating between his campaign and the Russian effort to benefit it.

It is possible, of course, that despite Manafort’s close ties to Konstantin Kilimnik, a Russian intelligence agent, and Roger Stone’s communication with WikiLeaks, which published the stolen Democratic emails, neither man possessed any evidence implicating Trump. The DOJ memo, and Trump’s defenders, have treated this possibility as a certainty.

“We cannot say that the evidence would prove beyond a reasonable doubt that the President’s statements, most of which were made publicly, were intended to induce any of these witnesses to conceal truthful evidence or to provide false evidence,” the memo argues, “Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the President had committed a crime.”

The reasoning here is obviously circular. If Manafort and Stone did have any evidence against Trump, promising to pardon them if they refused to cooperate prevented that evidence from coming to light. Mueller’s inability to get testimony from either man hardly proves they didn’t have any evidence to begin with. Barr’s memo essentially argues that it’s only obstruction if you try to obstruct justice and fail.

It is probably no coincidence that, after engaging in obstruction of justice and then finding his conduct defended by the Justice Department, Trump has proceeded to engage in obstruction yet again. In the latest instance, he appears to have violated the law by taking government documents, lying about his possession of them, and refusing to give them back. The Justice Department’s affidavit claims “probable cause to believe that evidence of obstruction will be found” in the papers Trump illegally refused to give back to the government after leaving office.

Trump’s cronies no longer control the Justice Department, so the case against holding Trump accountable for his obstruction falls to his allies outside the government. Here is a remarkable passage from the Wall Street Journal editorial page making the case that Trump didn’t really violate the law:

“The affidavit also contains references to comments by Mr. Trump and his associates that didn’t tell the truth about what was classified or what he had turned over to the National Archives before the search. This appears to have frustrated the bureau enough that it felt he might be guilty of obstruction of justice by his lack of cooperation. To put it another way, the FBI thought Mr. Trump was behaving badly, as he so often does.


But that didn’t mean the FBI and Justice Department had to resort to a warrant and federal-agent search that they knew would be redolent of criminal behavior.”

The first two sentences concede that Trump engaged in behavior (refusing to turn over stolen documents and then lying about it) that constitute a clear-cut violation of the law. But then the next sentence reframes these illegal actions as Trump “behaving badly” — as if this description somehow makes his crimes legal.

It then proceeds to complain about the Justice Department taking steps to respond to his defiance of the law that were “redolent of criminal behavior.” Well of course the government seizing stolen files was redolent of criminal behavior! That’s because it was criminal behavior!

Both the Barr memo and the Journal editorial turn Trump’s damaged psyche into an all-purpose defense of his mob-inspired work habits. Barr’s memo suggests Trump really just hated Mueller because he thought the investigation was hurting his agenda in Congress. The Journal insists Trump is simply a bad boy, but what are you gonna do?

The through-line to both these defenses is a belief, unsupported by any proof, that Trump’s obstruction of justice be seen in the most sympathetic possible light. If there is an available explanation for his crimes other than the existence of other crimes, it should be assumed correct, and used to offer leniency. And while Trump’s obstruction may merit a finger-wagging, the primary blame should fall on the authorities attempting to make Trump comply with the law. And when Trump decides to obstruct justice again, they will be blamed.

The Conservative Case for Letting Trump Obstruct Justice