Special Counsel Robert Mueller makes a statement on his investigation into Russian interference in the 2016 presidential election at the Justice Department in Washington, D.C., May 29, 2019. (Jim Bourg/Reuters)

We’ve left the definition of criminal conduct to the eye of the prosecutorial beholder.

At the risk of diving too deep into the legal weeds of the bitter debate about President Trump’s alleged obstruction of justice, I wanted to share a thought that’s been bothering me ever since I read the Mueller Report: America is fighting over the application of a terribly drafted and overbroad law. In other words, the law itself is corrupting our obstruction debate.


My position on the propriety of Trump’s conduct during the investigation is clear and unequivocal. The sheer extent of his lies and deceptions should shock our conscience. But do I think his reprehensible behavior was also illegal? There, I waver between “maybe,” “probably not,” and “no.” The reason is simple — the law itself, as written, provides a standard that’s insufficiently clear to guide human behavior. It grants prosecutors and courts too much authority and discretion to define criminality. It provides the ordinary citizen with insufficient information to regulate his conduct.

Let’s get very basic. Legal cases typically contain questions of law and fact. A question of fact revolves around actual events in the real world. Did the defendant shoot the victim? Did the defendant break into the victim’s house? The question of law often flows from the resolution of the question of fact. When the defendant shot the victim, did his actions meet the elements of the murder statute? Under the facts, did the defendants’ actions constitute burglary or robbery?


When a law is well-written and clear, a person of ordinary intelligence can know exactly what is prohibited. To take examples from the most recent presidential impeachment controversies, Bill Clinton knew full well that it was unlawful to lie under oath. Richard Nixon knew full well that a person may not bribe a witness. And while the question of fact may be difficult to determine, the application of law is relatively simple.

By contrast, look at the obstruction case against President Trump. The Mueller Report laid out the legal standard in key paragraphs that demonstrate the incredible breadth of the relevant statutes and the difficulty of discerning illegality.



First, Mueller quotes a federal court stating that obstruction-of-justice law “reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.” This is a statement of astonishing breadth. But Mueller’s not done. He then quotes the Supreme Court to note that “the verbs ‘obstruct or impede’ are broad and ‘can refer to anything that blocks, makes difficult, or hinders.’” That’s right, “anything.”

Second, Mueller also argues — again, with case-law support — that “improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” The key prohibition is against acting “corruptly,” and “corruptly” can mean “wrongful, immoral, depraved, or evil.”

Think of the breadth of this interpretation of the law. You can take actions completely within your power as a citizen, employer, or public official and still be prosecuted for them if a prosecutor deems your motivation to be subjectively “immoral” or “wrongful.” Yes, this discretion is bounded to some degree by relevant case law, but there is simply enormous room for legal argument even if the parties agree on the facts of the case.


For example, consider this question. Let’s suppose the president has a sincere and lawful objection to the scope of a special-counsel investigation, but lies publicly about his reasons for narrowing the investigation in an attempt to protect himself from the purely political fallout of making adverse moves against a special counsel. He was immoral. His conduct was wrongful. Does it meet the elements of the statute? Probably not, but in reality the very existence of the lie would be used as Exhibit A of corrupt intent in any obstruction prosecution.


Earlier this month, hundreds of former federal prosecutors signed a statement indicating that President Trump’s conduct “would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

Given the breadth of the relevant statutes, they may well be right. But two of the three stated grounds for indictment relate directly to the president’s exercise of his lawful powers — the alleged effort to fire Mueller and his alleged effort to limit the scope of Mueller’s investigation (the third ground relates to alleged witness tampering, a different inquiry).

One of the interesting side effects of the intense disputes over Trump’s actions and the investigation of Trump’s actions is the extent to which it has highlighted the sheer breadth of government power over individual conduct. Prosecutors have great leeway to charge obstruction. Normal investigative tactics can be quite intrusive and often create legal minefields even for otherwise-innocent individuals. FISA warrants aren’t terribly difficult to obtain.

So, what do we do? One solution I’ve often heard — that it should somehow be more difficult to apply the law to the president than to a private citizen, that courts should somehow take special care when a president or presidential candidate is in the legal crosshairs — is entirely unsatisfactory. One of the great virtues of our republic is that the law applies (or should apply) equally to all. Political power doesn’t function like baptismal waters, cleansing a man from accountability for his sin.


The better solution is to refine and improve the law. In the quest to deal with bad people and cleanse our nation of bad acts, we’ve left the definition of bad too often to the eye of the prosecutorial beholder.

But I’m not optimistic about the better solution. While listening to American political discourse, one gets the distinct impression that politicians and partisans are only too happy to leave the law intact as it applies to the little people, then argue vigorously for exceptions for their powerful partisan favorites.

Trump’s conduct is scandalous, no question. But so is the law. It places too much power in the hands of prosecutors and the courts, and it gives citizens — even presidents — inadequate definitions of prohibited conduct. The raging debates you read today are in part the product of a flaw in the system, a defect in the law that virtually no one will have the energy or interest to change.

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