Blame the law, not the lawyers

When the time came to decide whether President Donald Trump obstructed justice, federal law was perfectly arranged to cause special counsel Robert Mueller to hesitate and to encourage Attorney General William Barr to rush to judgment.

Obstruction of justice requires proof of a corrupt intent. The “intent” part is unproblematic. Scores of crimes require proof that the accused acted with intent or purpose — to kill, in the case of murder, or to steal, in the case of theft. Actions speak loudly of intentions, and even in the absence of a confession, a jury can reach unanimity on whether it was present or not. “Corrupt” is different, and the difference accounts for the odd conclusions reached by Mueller and Barr.

{mosads}In 2002, the accounting firm Arthur Andersen was convicted of obstruction of justice for “corruptly persuading” others to withhold or alter documents to be used in official proceedings. The Supreme Court overturned the conviction because it read “corruptly” to mean “inherently malign,” or “wrongful, immoral, depraved, or evil.”

If a “corrupt intent” is a malign, wrongful, immoral, depraved or evil intent, is it any wonder that Mueller declined to file charges and yet would not exonerate Trump of obstruction of justice? Perhaps Mueller believed Trump’s intimidation and firing of FBI Director James Comey, and his dangling potential pardons in front of witnesses, was all of these things. Whether he could prove it to a jury, however, was another question.

The problem is not that malign, wrongful, immoral, depraved or evil intent can’t be proved with the right evidence. The problem is that these standards are bald, all-things-considered moral judgments, about which jurors are unlikely to reach unanimity. Consensus depravity, evil and immorality is, when it comes down to cases, always elusive. This left Mueller with both good reasons not to charge and good reasons not to exonerate.

The attorney general might have decided not to charge Trump for the same reason, as a matter of prosecutorial ethics, but he didn’t. According to his letter to Congress, Barr declined to charge obstruction of justice because he concluded there was insufficient evidence of corrupt intent. Some criminal law scholars have argued that we can’t know whether that is true or not until the Mueller report is released. But we know now: The attorney general concluded that the president’s asking Comey to go easy on former national security adviser Michael Flynn, and musing about his pardon power, was not malign, wrongful, etc. Trump’s detractors think those same acts were malign; the facts in the Mueller report won’t alter their conclusion on that.

The tragedy in this runs deep. Where criminal law is concerned, the rule of law demands that people know what is and is not a crime; that police and prosecutors exercise their discretion within narrow bounds; and that courts come to reliable, understandable conclusions. The standard of “corrupt intent” is antithetical to all of this. With Barr’s summary of the Mueller report, “corrupt intent” has left us all wondering what conduct is prohibited, who might be prosecuted and punished, and why.   

This defect in federal criminal law intensifies a desperate situation. We should all be alarmed by a president who tries to intimidate the FBI, believes the attorney general should protect him from investigation, and who now has made clear he wants to use the Department of Justice to prosecute his enemies. We have a president who often seems disposed to admire the world’s worst offenders against the rule of law: Vladimir Putin, Kim Jong Un, Mohammad bin Salman, Rodrigo Duterte and Xi Jinping. Charging such a president with obstruction of justice would have shown his tendencies in their proper light.

Liberals have excoriated the Barr letter as a cover-up. If, as seems likely, the Mueller report contains politically damaging information about the president, his family or his associates, conservatives will revert to their former “deep state” conspiracy-mongering. The only sure thing is that the release of the Mueller report will intensify the political fight. This, too, could damage the rule of law. With facts that lead to no definitive legal conclusions, ordinary people are left with the impression that there is no principle in law, only politics — and that those who purport to act in the name of justice are merely politicians with impressive degrees and implausible pretensions to objectivity.

If the law required proof of only an intent to obstruct justice, all that would stand between Trump and a conviction would be the Justice Department’s policy against indicting a sitting president. That outcome would satisfy no one, but its basis in objective law at least would be clear, and the clarity of law is the first requirement of the rule of law. “Corrupt intent” fails that test, and we will pay a steep price for that failure.

Kyron Huigens is a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University, specializing in the theory of punishment. He previously worked for five years as a prosecutor and for three as a criminal defense attorney.