Harry Litman practices law at the firm Constantine Cannon and teaches constitutional law at the University of California at San Diego. He served as deputy assistant attorney general in the Justice Department from 1993 to 1998 and U.S. attorney for the Western District of Pennsylvania from 1998 to 2001.
Now that a consensus is beginning to emerge that special counsel Robert S. Mueller III has the evidence to make a compelling case of obstruction of justice against President Trump, the president’s defenders have trotted out a new defense: that obstruction on its own is a mere “procedural crime” that doesn’t really count unless coupled with proof of guilt on an underlying crime.
In other words, defenders view the Mueller probe as akin to the Watergate investigation without the break-in. But this view is wholly untenable.
The legal version of the argument is, as explained by Rich Lowry in National Review, “if Trump didn’t collude with Russia — or doesn’t have some other criminal secret to hide — it’s hard to see what his corrupt intent would be in an obstruction case.”
First, the premise doesn’t hold water. We won’t know for some time what Mueller’s probe will uncover, but we already know that the Trump campaign had extensive contacts with Russians — The Post has reported more than 30 — and that Trump flatly lied in claiming there were none. More damning, the president himself insisted on drafting a false account of the famous June 9, 2016, meeting between a Kremlin-connected Russian lawyer and senior campaign members, including Donald Trump Jr.
