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      07-30-2019, 12:01 AM   #140
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Quote:
Originally Posted by Eriphill View Post
Came across an interesting Twitter thread on obstruction:

There are multiple federal statutes for Obstruction. 1501, 1503, 1505, 1510-1513, 1516-20 – and none of them apply to this theory with Trump except 1512 (c), which has never been used for a situation like this.

That strongly suggests that Weissmann wanted to find the crime of Obstruction, and went through every statute to find something to pin on Trump, regardless of how shaky it was.

Also, 1512 (c) was originally enacted in 2002 to address Corporate Fraud (with the example case of “document shredding”) and NOT anything like the situation with Trump/Comey/Flynn.

The DOJ’s US Justice Manual (JM) describes 1512 as protecting witnesses/victims or informants: “Section 1512 of Title 18 constitutes a broad prohibition against tampering with a witness, victim or informant”

The most recent US Court of Appeals rulings (5th Circuit, 2008 and 9th, Circuit, 2013) hold an FBI investigation is NOT an official proceeding. The 9th in Ermoian was explicit:

“an FBI investigation is not an official proceeding under the [1512] obstruction of justice statute”

I can’t find ANY Federal Appeals Court that has specifically held that an *FBI investigation* is in fact, an “official proceeding” within the meaning of 18 USC 1512. None. Some have held other investigations are, but not FBI ones.

Bottom line: if those 5th and 9th Circuit positions hold, then it is LEGALLY IMPOSSIBLE for Trump to have committed a crime under this statute by “obstructing” an FBI investigation. He couldn't even do it as private citizen, never mind as POTUS.

Even if SCOTUS reversed the 5th and 9th (unlikely), according to the DOJ Justice Manual again, 1512(c) requires the defendant to intend “specific results, for example, preventing a witness from testifying at an official proceeding” - essentially, a form of specific intent.

Trump “hoping” for Comey to “let Flynn go” is not a specific result and cannot possibly apply as Comey wasn't a “witness, victim or informant” at the time, which is the clearly intended meaning of the statute

The D C circuit and the 2nd circuit have ruled the opposite. The 4th circuit appears to follow the same.

Here is a quote from a federal court ruling out of the 4th circuit in U S v Hutcherson:

Government agency actions, such as the FBI investigation of the defendant, are "official proceedings" under section 1512, whether or not a grand jury has been convened because Congress intended to deter obstruction of more than judicial proceedings with section 1512.
Specifically section 1512 (c)(2) is the omnibus clause that intends to punish the myriad of of obstructive conduct that cannot be adequately defined in the statute. The defendant's conduct of lying to an FBI agent and subsequently guiding him on an expedition for non existent documents is the type of conduct which section 1512 (c)(2) prohibits because because the defendant intended to influence the FBI agent's actions and to obstruct and impede the criminal investigation by exhausting government resources on a meritless search. Therefor, the defendant can be convicted under section 1512 because he corruptly intended to influence,obstruct, and impede an official proceeding.



As there is a circuit split, there is no uniform interpretation across the U S and each circuit will do as they feel (But again note what the D C and 2nd Circuits feel is the correct interpretation and where those courts are located). As for your speculation as to what the Supreme Court may do, that is just that, speculation.
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