Law & the Courts

Trying to Delegitimize the Prosecutor Is Not Obstruction

(Leah Millis/Reuters)
It is protected speech in our system — lawful, even if unsavory.

On their always intriguing podcast Skullduggery, Yahoo News’s Michael Isikoff and Dan Klaidman had Ken Starr as their guest on Friday. That was especially fitting in the wake of the 60 Minutes Stormy Daniels interview. As I pointed out in my column last week, Judge Starr was the special counsel (then called “independent counsel”) whose jurisdiction to investigate the Clintons’ involvement in the Whitewater scheme was expanded in 1998 to include President Clinton’s Monica Lewinsky scandal. Starr is a good person to consult regarding the possibility that today’s special counsel, Robert Mueller, may expand his Russia probe to investigate whether laws were broken in the cover-up of President Trump’s alleged relationship with Daniels (whose real name is Stephanie Clifford).

Starr’s erudition, good cheer, and practical experience in the independent-counsel role, coupled with the reporters’ sharp questions, makes the whole interview worth your while. I want to home in, though, on the discussion of obstruction.

It was broad-ranging, with Isikoff and Klaidman probing along the now-familiar line of anti-Trump thinking that a president could be charged with obstruction based even on ostensibly lawful acts — such as issuing pardons to potential witnesses like Michael Flynn and Paul Manafort — if a prosecutor could credibly allege a corrupt intent.

Starr essentially rejected this proposition, theorizing that obstruction, particularly in the pardon context, would have to be based on illegal acts (such as bribery). Under the Constitution, the executive’s pardon power is plenary; it is not supposed to be judicially reviewable and the president does not need a reason to extend clemency. Therefore, Starr reasoned, we should presume that the president pardons for legitimate reasons (e.g., based on his sincere belief that the prosecution was overbearing or that the pardon petitioner was innocent) unless there is a patently criminal inducement. (The podcast recounted Clinton’s pardons of Susan McDougal and some other potential witnesses against him whom Starr had prosecuted.)

I agree with Judge Starr. Having made a similar argument a number of times (see, for instance, here and here), I don’t want to belabor the point. Instead, I want to address a slightly different variation on the anti-Trump obstruction theory, pressed by the Yahoo journalists:the notion that a president may be guilty of actionable obstruction if he attempts to “delegitimize” an investigation.

The issue arises due to President Trump’s recent barrage of tweets against Special Counsel Mueller. Trump’s then-attorney, John Dowd (who has since withdrawn from his legal team), also called for an end to Mueller’s probe. Starr poured cold water on the idea that this could constitute obstruction. Recalling that he and his investigation were subjected to a relentless, often vicious delegitimation campaign by the Clinton camp, Starr observed that such attacks are protected speech in our system — lawful, even if unsavory.

I don’t think Starr could have been more right about this. I just want to add three points to his assessment.

First, rhetoric that aims to delegitimize the government’s investigation and prosecution is a staple of criminal defense. Far from obstructing justice, it is routinely part of the judicial process. I daresay that, were it not for Trump derangement, normally sensible anti-Trump critics would easily see that criminalizing such rhetoric would unconstitutionally erode the presumption of innocence.

To suggest that the prosecution may not be subjected to harsh criticism — whether or not deserved — would create a presumption of prosecutorial propriety. There is no such thing in our system (due-process safeguards protect us from the government; they don’t protect the government from us). If the prosecution started out with a presumption in its favor, the accused would not be presumed innocent — the presumption would be that to suspect the defendant of criminal misconduct was entirely reasonable. That would get the prosecutor at least 80 percent of the way to a conviction.

Second, it is standard fare for the defense to attack the investigators and prosecutors as corrupt or rabid at trial — i.e., after a grand jury has already found probable cause for the charges. How, then, could it possibly be unlawful to attack the investigators and prosecutors as corrupt or rabid during the investigation? At that early stage, no grounds for charges have been established — and in Trump’s specific situation, no crime predicated the investigation, and none has been demonstrated after nearly two years of digging. Moreover, it cannot be that the same tactic — attempting to delegitimize the investigation — is simultaneously a felony and a common approach to criminal defense.

Third and finally, while lawful, attacking the investigation is frequently a very foolish move.

To be sure, if the prosecutor and investigators have in fact engaged in corrupt or overbearing behavior, they should be called on it. And if a defendant can demonstrate that his claims of misconduct are justified, it will redound to his benefit. Most of the time, though, such claims are fabrications or exaggerations, and when all the relevant facts are revealed, it becomes clear that the prosecution’s actions were within the bounds of reason.

While no one likes to be maligned, I was usually very content as a prosecutor to be attacked, for two reasons. First, if defendants were reproaching me or my agents, it signaled that they needed to distract attention from the evidence because they had no real answer for it. Second, I knew that once the proof started to be revealed, the defense claims of misconduct would be exposed as nonsense that had been intended to mislead the public and the jury. This meant the defense would lose credibility, which is close to impossible to get back. It made it much more likely that the prosecution would prevail.

In a high-profile investigation involving a suspect who can command public attention at will (as a president can), I learned that it was extremely important for the prosecutor to keep pushing information into the public record. I am not talking about leaks, which are improper. I mean complaint affidavits to support arrests, submissions in connection with bail hearings, indictments, motions, letters to the court explaining the government’s position on various issues — anything that is proper to file publicly and that provides an opportunity to lay out the government’s case or refute claims of prosecutorial misconduct.

The sooner investigative information can be revealed publicly, the sooner the media will be armed with facts that counter what the suspects and their sympathizers are saying. Until that point, the suspects and their apologists are the only ones talking.

This is not always easy to do. In an investigation, building the case is paramount, and secrecy is often necessary. If investigative information is disclosed prematurely, suspects may destroy evidence, flee, tamper with witnesses, etc. And you can’t always rush arrests or indictments — until the prosecutor has sufficient evidence, charges must not be filed; and even when there is enough evidence to charge one suspect, a prosecutor resists arresting any one suspect until he is in a position to charge all the suspects (otherwise, again, there may be destruction of evidence, flight, witness-tampering, etc.).

But all that said, the sooner investigative information can legitimately be revealed publicly, the sooner the media (in particular, journalists sympathetic to the prosecution or skeptical about defense claims of government misconduct) will be armed with facts that counter what the suspects and their sympathizers are saying. Until that point, the suspects and their apologists are the only ones talking.

If Judge Starr made a mistake in his independent-counsel investigation, it was in effectively going dark for many months while the Clinton camp undertook to destroy his good name and delegitimize his case. By the time his very comprehensive and compelling report was disclosed, public opinion had shifted decisively in President Clinton’s favor — the narrative that Starr was just a zealot obsessed with Clinton’s sex life, and that “it was just lies about sex,” had taken hold.

In stark contrast, while Special Counsel Mueller has not established Trump-campaign collusion with Russia, he has managed to (a) make cases against high-ranking Trump-campaign officials; (b) establish that four of those officials (Paul Manafort, Richard Gates, Michael Flynn, and George Papadopoulos) had contacts with Kremlin-connected figures (albeit not contacts that amounted to a criminal conspiracy implicating the campaign, or that were necessarily illegitimate); and (c) make a case against various Russians for schemes to interfere in the 2016 election (albeit a case that cannot be prosecuted and, therefore, will not be tested in court). Thus, even though there is evidence of investigative irregularities in the Russia investigation, Trump’s attacks on the probe have not gotten the traction that Clinton’s attacks on Starr did.

Of course, it makes a big difference that the mainstream media embraced Clinton and loathes Trump. Nevertheless, Mueller has been shrewder than Starr was about arming the media with information that blunts presidential attacks on the investigation.

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