Let's Make Sure 'Obstruction of Justice' Is Properly Defined

A line must be drawn.  No longer can the phrase "obstruction of justice" be allowed to mean something obscenely different from what any fair-minded, free person knows it was intended to mean.  In the minds of most, the phrase refers to blocking the discovery of truth, truth being the only legitimate basis on which appropriate redress can be made for some wrong that has been suffered.

Any codified law that uses the phrase "obstruction of justice" to mean something other than precisely this is in jeopardy of obstructing true justice.  If a law is needed to insure that an official investigation is not obstructed, then the language of the law must refer to obstruction of an investigation or obstruction of police work or obstruction of intelligence activities.  Any reference to this sort of thing as "obstruction of justice" assigns a specialized definition to the word "justice" that does more than just legalistically narrow its established commonplace meaning; it creates a misleading new meaning with the explicit intention of illegitimately assigning to some formal entity all the virtue that English-speaking people naturally and universally associate with the word "justice."

The Department of Justice is not synonymous with "justice."  We all sincerely hope that the Department pursues true justice most of the time, but anybody with any worldly experience knows that sometimes it doesn't.  Obstructing the activities of the Department of Justice should not be automatically viewed as obstructing justice.  Even if the Department of Justice is behaving honorably, a person who interferes with its investigation to keep it from arriving at a false conclusion should not be found guilty of obstructing justice.  Only a person who attempts to block the department from discovering something true should even be considered for prosecution based on obstruction of justice.

This brings us to President Trump and the Mueller Report.  Mueller found that there was no compelling evidence that Trump colluded with the Russians to influence the outcome of the 2016 election.  Given the nature of our legal system, this effectively clears Trump of the charge — and that charge was the predicated reason for doing the investigation in the first place.

The remaining controversy now before us is whether Trump obstructed justice while Mueller investigated the matter.  For Trump to have done so, he would have had to hinder Mueller's team from establishing his lack of guilt.  How silly!  It is irrational to think Trump would have deflected Mueller from discovering Trump's innocence (the recognized status of anybody who is not guilty).

The way in which Trump might now be found guilty of obstruction of justice is if he hindered the activities of the Mueller investigation.  Anybody with a clear vision of what "obstruction of justice" means recognizes that obstructing the activities of a government agency is not the same thing as obstructing the discovery of truth.

Nothing is ever quite that simple: a person might obstruct an investigation leading to exoneration for a particular crime because it will reveal some other crime for which that person is indeed guilty.  But this would be an exceptional situation.  Those who claim that Trump is guilty of obstruction of justice need to identify what specific crime he committed and what specific action he took to keep that misbehavior from being discovered.  If they cannot do so, then the obstruction charge should be dismissed.

Regardless of how an obstruction law might read, no citizen who is innocent of a crime should ever be found guilty of having obstructed justice if his actions facilitated a correct conclusion regarding it.  If that citizen murdered the investigator or forged documents, well, those are different crimes.  The citizen who only makes it harder for an investigation to prove as true something that is not true is not engaging in criminal behavior. 

The American legal system is essential for the business of assuring that the constitutionally accorded rights of citizens are protected.  For much of our history, it served this function reasonably well, but in recent years, linguistic doublespeak has wormed its way into the specialized legal vocabulary in such a way as to put ever more power into the hands of those who administer the laws.  "Obstruction of justice" has become a device for insuring that investigators and prosecutors can pursue their aims without regard for whether those aims are just or properly motivated.  Anybody who stands in their way, for no matter what reason, has now been classified as a criminal for obstructing their will.

An example of the malignant authoritarianism that has emerged as part of our legal system is the way in which our growing multiplicity of laws has permitted the legal authorities to charge individuals with multiple offenses against the law when in fact the crime committed was a single crime.  This allows the police and prosecutors to bludgeon an indicted person into submission by insuring that a vigorous defense will open up the prospect of endless time in prison if the defense attorney does not get the defendant to agree to a plea deal.  Often it is the case that both the prosecution and the defense will find it in their interest to have a malleable defendant.  In a sane world, this sort of practice would be viewed as true obstruction of justice. 

For example, General Flynn might have said to his FBI investigators, "I didn't talk with the Russian ambassador on the phone and lobby him about the Russian reaction to sanctions."  That would have been a lie.  But what if he had said, "I didn't talk with the Russian ambassador on the phone.  I didn't lobby him about the Russian reaction to sanctions"?  That would have been two lies.  Would it have been just for the Mueller investigation to have doubled the charges against him, making him vulnerable to ten years of jail time instead of five?  Would Flynn have deserved double punishment based on how he constructed his lie?

The freedom and flexibility we have accorded to law enforcement has exceeded the bounds of reasonableness.

Image: James Ledbetter via Flickr.

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