The Rot at the Department of Justice

Almost exactly one year ago, I wrote this post about the resilience of the Department of Justice in the face of president Trump’s onslaught. I argued that although Trump had repeatedly tried to thwart the Mueller investigation, he had been largely unsuccessful due to the strength of the norms mandating that DOJ criminal investigations be free from White House interference. And like many others, I was cautiously optimistic that this would continue under the new Attorney General, William Barr. I wrote:

Whatever you may think of his policies, Barr is a serious person and former Attorney General who understands his role. Once again, if Trump thought that by appointing Barr he was installing someone who would make protecting the president his top priority, I think he is going to be disappointed.

Yikes. You have to grant me this: when I blow it, I really blow it. It took Barr only a few months to prove how spectacularly wrong I was.

Under Barr, the norms of DOJ independence have been shredded. He repeatedly acts like a personal attorney for the president, not like an Attorney General charged with safeguarding the rule of law for the entire country. Barr and Trump have deployed DOJ as a weapon to advance Trump’s political interests and petty personal feuds. And Barr has personally intervened, in an unprecedented way, in criminal cases involving the president’s cronies.

There’s an old saying that a fish rots from the head down. Well, the head of the Department of Justice is rotten. The only question now is how far the rot will extend, and how long it will endure once Barr and Trump are gone.

Richard Nixon
President Richard Nixon

The Tradition of DOJ Independence from the White House

Under president Richard Nixon, the Department of Justice was weaponized and used to further the president’s political interests. Nixon’s Attorney General John Mitchell went to jail for his role in Nixon’s crimes and the subsequent cover-up. Nixon’s case highlighted the dangers of allowing a president to use the awesome power of DOJ, including the power to control criminal investigations, to serve his private political interests. As part of post-Watergate reforms, a figurative wall was erected between the White House and DOJ when it came to criminal investigations.

In the nearly fifty years since Watergate, DOJ criminal investigations have been largely insulated from political influence by the White House. As a general rule, discussion of individual criminal cases between a president and the attorney general has been considered off limits, and presidents generally avoid weighing in on the merits of particular criminal cases. No one claims this rule was never stretched or breached, of course, but in general, administrations of both parties recognized that this norm of DOJ independence was important and worthy of respect.

The example from my own experience that this always brings to mind involves the prosecution of former Illinois Congressman Dan Rostenkowski. Rosty was the chair of the House Ways and Means Committee and one of the most powerful Democrats on Capitol Hill. When Bill Clinton defeated George H.W. Bush and was elected president in 1992, I was part of a team of prosecutors at the U.S. Attorney’s Office in Washington, D.C. in the midst of a lengthy criminal investigation of Rostenkowski for looting various accounts at the House of Representatives.

Rosty was a key political ally of Clinton’s and was critical to his (ultimately unsuccessful) efforts to pass health care reform. But there was never even a suggestion that we should back off the investigation in order to further Clinton’s political goals. None of us involved in the case even really gave that possibility a moment’s thought — we knew that was not how DOJ operated. The investigation, begun under a Republican administration and Republican U.S. Attorney, was completed under a Democratic administration and Democratic U.S. Attorney. Rostenkowski was indicted, convicted, and sent to prison. As Eric Holder, Jr., who was the U.S. Attorney at the time, recently confirmed, there was never any interference from the White House.  That’s how it’s supposed to work.

Jeff Sessions
Former Attorney General Jeff Sessions

Trump’s Early Attempts to Breach the Wall

It was always clear that Trump has no appreciation for the importance of DOJ independence and simply sees the Department, like the government in general, as a tool to be used to benefit himself. Even before he was elected, he threatened that he would direct his Attorney General to prosecute Hillary Clinton and that she would “be in jail” if he became president. Trump spoke repeatedly about wanting an Attorney General who would protect him like Roy Cohn, his former personal lawyer and chief counsel for the McCarthy hearings. Trump thought he had found that when he picked Alabama Senator Jeff Sessions, one of Trump’s earliest and most steadfast supporters, to be his attorney general.

But Sessions, a former United States Attorney, resisted Trump’s efforts to use DOJ to serve his personal interests. When questions arose about his own contacts with Russian officials, Sessions properly recused himself from all matters involving the Russia investigation, which infuriated the president. According to the report by Special Counsel Robert Mueller, Sessions thereafter repeatedly resisted entreaties from Trump to “un-recuse” himself so that he could step back in and shut down the Mueller investigation. Sessions maintained the independence of DOJ in other ways as well. For example, his DOJ indicted two Republican members of Congress in the fall of 2018, shortly before the mid-term elections – an act for which the president, naturally, criticized him on Twitter.

During the first two years or so of Trump’s presidency, others who also respected the tradition of DOJ independence thwarted his efforts to interfere with the Mueller probe. Trump requested “loyalty” from FBI Director James Comey, and later asked him to go easy on Michael Flynn, Trump’s former national security advisor, who was ultimately convicted of lying to the FBI about his Russian contacts during the campaign. When his efforts to pressure Comey failed, Trump fired him. That didn’t work either, because Deputy Attorney General Rod Rosenstein, another career DOJ employee, promptly appointed Mueller as special counsel.

The Mueller report also details how White House Counsel Don McGahn resisted Trump’s efforts to obstruct justice. At one point Trump demanded that McGahn have Mueller fired, but McGahn refused to follow that order and was prepared to resign in protest if necessary. Trump later ordered McGahn to create a document falsely denying that this had ever taken place, and McGahn once again refused.

The Mueller investigation proceeded to its conclusion largely unimpeded. Trump was able to do little more than rage-tweet incessantly about the “witch hunt.” There were some guardrails still in place, people who would stand up to Trump’s improper demands – or at least fail to carry them out until he moved on to something else. Trump’s efforts to bend DOJ to his will were largely unsuccessful. That’s what I wrote about in that earlier post.

Now all that has changed.

Attorney General William Barr
Attorney General William Barr

Barr’s Politicized Department of Justice

After more than a year with Barr as the Attorney General, it’s become clear that he has no intention of upholding DOJ’s tradition of independence from White House influence. On the contrary, Barr appears only too willing to use the power of DOJ to protect the president and advance Trump’s personal political interests.

The first real sign of trouble was Barr’s handling of the Mueller report. His incredibly misleading press conference and letter after he had received the final report “spun” the results and created the impression that Mueller had found no wrongdoing by the president. Although Mueller had declined to make a call on obstruction of justice, Barr himself declared that there had been no obstruction. When the report was finally released weeks later, it became apparent how misleading Barr’s characterization of the report had been, but by that time the “no obstruction, no collusion” narrative was firmly implanted in the public’s mind.

There have been many other troublesome events. For example, in the wake of the phone call with the president of Ukraine that ultimately resulted in Trump’s impeachment, DOJ quickly concluded there was no campaign finance violation and did not even investigate the possibility of bribery, which was clearly implicated by the call. During the Trump administration’s ongoing battles with Congress, Barr’s DOJ has repeatedly supported the administration’s complete refusal to cooperate  with Congressional oversight and blanket assertions of absolute immunity prohibiting testimony by any administration officials. In court pleadings, DOJ has argued that Congress essentially lacks the power to investigate any possible criminal misconduct by the president. Barr announced he has created an intake process to accept information from Rudy Giuliani about the Bidens and Ukraine, part of the efforts that led to Trump’s impeachment. He has appointed another U.S. Attorney, John Durham, to examine whether the investigation into Russian interference in the 2016 election was begun improperly, part of Trump’s claim that the entire Russia investigation was a hoax.

But in recent weeks, it’s been Barr’s interference in the criminal cases of Trump allies who were prosecuted by Mueller that has really set off alarm bells about the lack of DOJ independence.

Roger Stone
Roger Stone

The Roger Stone Case

Republican political operative and Trump advisor Roger Stone was convicted by a jury last November of seven felony counts of lying to Congress, obstruction of justice, and witness tampering. The jury found that Stone repeatedly lied to a Congressional committee about his role as an intermediary between the Trump campaign and Wikileaks concerning the stolen Democratic emails that were released in the weeks leading up to the 2016 election. Stone also threatened another witness, Randy Credico, including sending text messages telling Credico to “prepare to die” and threatening to harm Credico’s dog.

The federal sentencing guidelines call for Stone to be sentenced to between 7 and 9 years in prison. That’s a pretty stiff sentence for this kind of case, but it was largely driven by the threats to a witness and by the pervasiveness of Stone’s misconduct. The sentence was calculated by the U.S. Probation Office, which prepares a pre-sentence report for the judge that includes the guidelines calculations.

The career prosecutors who convicted Stone filed a sentencing memorandum on Monday, February 10. They took a pretty hard line on Stone and his misconduct, and agreed that a sentence within the guideline range recommended by the probation department would be appropriate. At the same time, they acknowledged the court might find that some of the guidelines enhancements should not apply, and that such a finding could result in a lower sentence. Overall, it was a tough but measured position and, considering that it was right in line with probation’s recommendation, it was certainly nothing unusual. In fact, they were following DOJ policy; Sessions had issued a memorandum in 2017 instructing prosecutors that in most cases they should request sentences within the guideline range.

But at around 2:00 am the following day, Trump tweeted out what he thought about the proposed sentence:

Hours later on Tuesday, senior DOJ officials announced that they thought the proposed sentence “extreme, excessive, and grossly disproportionate” and that they would be filing a new sentencing memorandum. That memorandum was filed later on Tuesday, with the Department now recommending a much lower sentence. On Wednesday, Trump tweeted out a congratulations to William Barr for “taking charge” of the Stone case.

The Tuesday Night Massacre

None of the names of the four career prosecutors who worked on the Stone case appeared on the new sentencing memo. They all moved to withdraw from the case in protest, and one of them quit the Department of Justice entirely. Some have dubbed this the “Tuesday Night Massacre,” a reference to the Watergate “Saturday Night Massacre” when Nixon’s Attorney General and Deputy Attorney General both resigned rather than carry out his order to fire Watergate special prosecutor Archibald Cox. (In this sequel, the role of Solicitor General Robert Bork, who ultimately agreed to fire Cox, is played by John Crabb, Jr., a supervisor at the U.S. Attorney’s Office, who signed the pleading after the other prosecutors refused and quit.)

Barr subsequently claimed in an interview that he had already decided to intervene in the Stone case before Trump’s tweet, and that he had no communication with the White House about it. But even if true, that’s beside the point. Everyone, including Barr, could predict how Trump would react to Stone’s proposed sentence. And there is absolutely nothing unusual or extraordinary about Stone’s case that would justify the personal attention of the Attorney General.

Former DOJ officials have been commenting on social media about how many cases they can recall where the Attorney General personally intervened about a sentencing recommendation. So far, the total for everyone I’ve seen – including me – is zero. And it would be ridiculous to suggest that Barr suddenly developed a newfound concern about the harshness of the federal sentencing guidelines. There’s no plausible explanation for Barr’s intervention other than that it was done to appease the president and try to cut one of his political cronies a break.

Michael Flyy
Michael Flynn

The Michael Flynn Case

The case of Michael Flynn, Trump’s former national security advisor, has seen some strange twists and turns. Flynn pleaded guilty to one count of lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. He agreed to cooperate with the Mueller investigation. At the time of his initial sentencing date in December 2018, prosecutors told the court that Flynn’s cooperation was extensive and they did not oppose a sentence of probation. However the judge did not seem satisfied, and looked like he was poised to send Flynn to prison anyway. The sentencing was then continued to allow Flynn to cooperate further by testifying in the trial of his former business associate about their work on behalf of Turkey.

Leading up to that trial, however, prosecutors decided Flynn was lying to them, and they never put him on the stand. They went back to his sentencing judge and withdrew their recommendation of a sentence of probation, arguing for a sentence within the guideline range – which was still only 0-6 months.

Flynn’s new lawyer, Fox news regular and conspiracy theorist Sydney Powell, flipped out (that’s a legal term). She filed motions to withdraw Flynn’s guilty plea and to dismiss the case entirely, accusing prosecutors of gross misconduct. Prosecutors responded to those motions by returning to their earlier recommendation of a sentence of probation. That seemed odd, but not earth-shattering, since probation was always an option within the recommended guideline range.

But now it appears Barr may have had a hand in that reversal as well. There are reports that Barr has appointed an outside prosecutor to review the entire Flynn prosecution. And during the time the government softened its sentencing position, Trump removed the U.S. Attorney who had convicted Stone, Jessie Liu, and replaced her with Timothy Shea, a former close aide to Barr. The government’s backing off harsher sentencing recommendations as to both Stone and Flynn coincides with the arrival of Barr loyalist Shea as the acting U.S. Attorney.

The Fallout from Barr’s Actions

Barr’s very public interference with the criminal investigations of Trump’s political cronies has resulted in some extraordinary blowback. More than 2,000 former DOJ employees, from both parties, have signed a letter demanding that Barr resign. Barr’s former colleague in the George H.W. Bush Justice Department, former Deputy Attorney General Donald Ayer, wrote an article in the Atlantic demanding the same thing. The Federal Judges Association convened an emergency meeting to discuss the “deepening crisis” involving Barr and the DOJ. There are rumors that Barr is thinking about resigning, although I find that very hard to believe.

Trump, meanwhile, tweeted that he believes he has every right to intervene in criminal cases prosecuted by DOJ:

As disturbing as this Tweet may be, Trump is technically correct: there is no law that prohibits such interference. Only the norm of DOJ independence, and our traditional adherence to the rule of law, stand in his way. This norm is what separates us from authoritarian regimes, where leaders use criminal prosecution as a political weapon against their enemies. Events over the past year have shown us what a fragile norm that is, and how easily it can be discarded by an administration with no regard for the rule of law and concerned only about maintaining power.

You have to wonder what else might be coming between now and the election. What will become of all the other investigations that were referred out by Mueller, and with the ongoing investigations in the Southern District of New York that may implicate Trump, his business, his family, and his close associates? There seems little reason to be confident that they will be allowed to proceed unimpeded.

It also now seems entirely predictable that, at some point later this year, we are going to hear an announcement from DOJ of some kind of investigation that benefits the president. Maybe it will be a criminal investigation of whoever ends up being Trump’s Democratic opponent, or a report concluding that the entire Russia investigation was a sham and part of a “deep state” effort to take down Trump. Under Barr, the politicization of DOJ appears to be nearly complete.

There are still a few guardrails remaining. One is the independent judiciary. The judges in the Stone and Flynn cases will have the final word on their sentences, regardless of the DOJ recommendations – although Trump will, of course, always have the final card to play in the form of a possible pardon. And the dedicated career people at DOJ, who still believe in its mission, will continue to fight and protest from the inside. Perhaps more will follow the lead of the Stone prosecutors by stepping down rather than agreeing to go along with Barr’s corruption.

One day, one way or another, Trump and Barr will be gone. I hope that DOJ can recover from the damage they have done. It’s not easy to restore public trust once an institution’s integrity has been so badly tarnished. But the country did it after Watergate, and hopefully it can do it again. If not, then the damage to our system of justice and belief in the rule of law may become one of the most tragic legacies of the Trump administration.

The Crimes in the Articles of Impeachment

Last week the House Judiciary Committee voted out two Articles of Impeachment of President Trump. The full House is expected to vote on them this week. Article One charges Trump with Abuse of Power for his actions toward Ukraine, and Article Two charges him with Obstruction of Congress. One common refrain among the president’s supporters is that impeachment is not appropriate because these articles do not allege the president committed a crime. But this is not correct: although the articles do not cite specific federal statutes, the facts they allege do establish several federal offenses. There are indeed crimes in the Articles of Impeachment.

But First: Impeachment Doesn’t Require a Crime

The Constitution provides the president may be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton, in Federalist 65, wrote that impeachment is a remedy for abuse of office and is appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

Although there is some debate about the exact meaning of “high Crimes and Misdemeanors,” there is a general consensus that impeachment does not require proof of a federal crime. Of the four law professor experts on impeachment who testified before the House Judiciary Committee on December 4, all four – including the expert called by the Republicans – agreed that impeachable offenses are not limited to conduct that violates federal criminal statutes. Professor Noah Feldman of Harvard Law School testified: “the essential definition of high crimes and misdemeanors is the abuse of office,” and that the “classic form … is using the office of the presidency for personal advantage or gain, not for the public interest.” He went on to note that: “the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute.”

Even if you believed conduct should be criminal to be impeachable, that wouldn’t mean the conduct should have to track the precise elements of the current U.S. criminal code. The men who wrote the Constitution could not have been thinking of the federal criminal code because it did not exist at the time. Crimes such as bribery have been around as long as there have been politicians, and have common-law meanings not tied to the language of particular statutes. What’s more, the current federal criminal code contains a number of different statutes that prohibit bribery, and they do not all share the same definition of the offense.

Linking impeachable offenses to particular acts of Congress would mean Congress effectively could amend the Constitution by passing criminal statutes. For example, if “bribery” in the impeachment clause is defined by the current federal bribery statute, Congress could amend that statute and thereby alter the standard for impeachable offenses, rather than going through the normal Constitutional amendment process. This is exactly backwards: the Constitution is the supreme law of the land. Acts of Congress must conform to the Constitution, not the other way around.

In the Judiciary Committee report released on December 16 to accompany the articles of impeachment, the Republican committee members who dissented from the report admitted that impeachments of past presidents have included articles of impeachment that did not allege a specific crime. But they claimed this is the first time a presidential impeachment has consisted solely of articles that do not state a criminal offense, and that this is improper. According to the Republicans, “The Majority’s Articles of Impeachment are unprecedented in American history because they are not based on criminality, as were all prior presidential impeachments.”

But the Republicans are wrong: there are crimes in the Articles of Impeachment, and they are indeed “based on criminality.”

A Crime By Any Other Name

The claim that these Articles of Impeachment do not allege criminality reminds me of the claim from the days of the Mueller investigation that “collusion is not a crime.” There was an almost obsessive focus on the label applied to the conduct under investigation. Yes, it’s true there is no crime called “collusion.” But if people agree to engage in criminal activity, that act of collusion may violate the federal conspiracy statute. There’s also no crime called “shooting someone until they are dead” – but if you do that, you will be prosecuted for the crime called homicide. What matters in criminal law is the conduct, not the label applied to that conduct.

The Articles of Impeachment don’t cite specific federal statutes that the president allegedly violated. As noted above, there’s no particular reason they would; impeachable conduct is not defined by the terms of federal criminal statutes, and this is not a criminal indictment. But the facts alleged in those Articles would, if proven at a criminal trial, establish the commission of a number of federal crimes.

Article One: Bribery and Honest Services Fraud

The blog Just Security just published a collection of articles about the crimes implicated by president Trump’s conduct, called “Federal Criminal Offenses and the Impeachment of Donald J. Trump.” (I wrote the piece on bribery for the collection.) It identifies a number of crimes that Trump may have committed in his dealings with Ukraine. The first Article of Impeachment most clearly establishes two of those crimes: bribery and honest services fraud.

Bribery

The first Article of Impeachment, charging Abuse of Power, focuses on Trump’s attempts to pressure Ukraine into announcing two investigations that would be personally beneficial to Trump. One investigation was into the Bidens and the Ukrainian energy company Burisma, and the other into a debunked conspiracy theory involving alleged Ukrainian interference in the 2016 election. It alleges that Trump acted with “corrupt purposes” in pursuit of this personal benefit. And it alleges that he “conditioned two official acts” on Ukraine’s public announcement of the investigations: release of the Congressionally-approved military aid to Ukraine, and agreeing to a White House meeting that was desperately sought by Ukrainian president Zelensky.

Although Article One does not cite the bribery statute, the Article’s language closely tracks that law’s requirements. The statute, Title 18, United States Code, Section 201, provides that a public official commits bribery if he corruptly solicits or demands a thing of personal value in exchange for being influenced in the performance of an official act. All of the elements of the offense are clearly alleged in impeachment Article One. It alleges that Trump acted to obtain a thing of personal value, that he acted corruptly, and that he was agreeing to be influenced in the performance of official acts in exchange. This is the language of bribery.

In the Just Security piece on bribery, and in other articles (here and here, for example), I’ve written in detail about how the elements of the bribery statute are satisfied here. President Trump is a public official, the announcement of the Ukrainian investigations would be a thing of personal value to him, granting the White House meeting and releasing the aid are both “official acts” under the statute, and he acted corruptly by wrongfully linking his official actions to his demand for the announcement of the investigations.

Again, what matters are the facts of the president’s conduct. You can call it Abuse of Power, or you can call it Bribery. But the largely uncontested evidence of the president’s conduct toward Ukraine does in fact constitute bribery under current federal law.

Honest Services Fraud

When it comes to honest services fraud, the analysis is largely the same. Honest services fraud is a species of federal mail and wire fraud. In an honest services case, the defendant is charged with defrauding the victims of the right to fair, honest, and impartial services they are owed by someone. It’s most commonly used as a public corruption theory, with corrupt public officials charged with defrauding their constituents of the fair and honest services the officials owe the public.

In the 2010 case of Skilling v. United States the Supreme Court ruled that honest services fraud prosecutions are limited to cases involving bribery or kickbacks. The Court also held that it would define bribery for purposes of honest services fraud by using the definition in the bribery statute, 18 U.S.C. 201. As a result, the legal analysis for honest services fraud ends up mirroring the bribery analysis discussed above. As president, Trump owes a duty of honest services to the public. Because his conduct meets the elements of federal bribery, these facts also would qualify as honest services fraud. The only additional requirement would be proof that he used the mail or a wire or wireless transmission in furtherance of the fraud. The telephone call with president Zelensky would easily satisfy that requirement.

Article Two: Obstruction of Congress

The second Article of Impeachment charges the president with Obstruction of Congress. It alleges that Trump has improperly obstructed Congress’s impeachment inquiry by declaring it illegitimate and completely refusing to cooperate. He instructed numerous executive branch officials and key witnesses to defy subpoenas and refuse to testify. He also instructed the White House, State Department, and other agencies to refuse to turn over any documents in response to Congressional subpoenas. Article Two alleges that:  “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’”. 

Obstructing the impeachment inquiry itself was also one of the impeachment charges against presidents Nixon and Clinton. It relies heavily on the fact that the Constitution gives Congress the “sole power” to conduct impeachments. By declaring the entire inquiry illegitimate and refusing to cooperate, the Article alleges, Trump has “sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct.” This undermines the system of checks and balances set forth in the Constitution, which gives Congress the power to check a president’s conduct through impeachment. It is like a criminal suspect seeking to dictate to the FBI exactly how it should investigate him and what techniques it could use.

The president’s defenders argue that Congress should go to court and seek rulings on the president’s refusal to cooperate, rather than simply moving forward on impeachment. The House Report explains why the Democrats reject this claim. First, it would likely result in unacceptable delay, because court rulings and appeals can take months or even years. Particularly where the misconduct concerns an attempt to manipulate the upcoming 2020 election, the Democrats argue that they need to move quickly. Second, they argue that because the Constitution grants Congress the sole power to try impeachments, Congress has never relied on court review concerning its impeachment powers. The House Report states: “Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review.”

Unlike the term “Abuse of Power” alleged in Article One, “Obstruction of Congress” actually is a crime – although again, the Article of Impeachment does not cite any particular criminal statute. Obstruction of Congress may be prosecuted under at least two different federal statutes that prohibit obstruction of justice: Title 18, United States Code, Sections 1505 and 1512.  Section 1505 applies to anyone who “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House . . . . “  Section 1512(c)(2) punishes anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.”  “Official proceeding” is defined to include Congressional investigations. 18 U.S.C. 1515(a)(1)(B).

These statutes readily apply to conduct such as defying Congressional subpoenas and ordering subordinates not to testify. If this were a criminal prosecution, then as with most obstruction of justice cases the key issue would be proving corrupt intent. The president would argue he is simply asserting valid executive privileges in response to Congressional overreach and is not acting with corrupt intent. Congress would respond by pointing out the unprecedented nature and breadth of the president’s complete refusal to cooperate in the investigation or even to recognize its legitimacy.

It seems there would be a compelling case that by completely stonewalling Congress’s efforts to conduct an impeachment inquiry, the president did indeed act with the requisite corrupt intent to obstruct. And that’s a federal crime. The merits of the president’s defense would be up to the Senate during the impeachment trial. But there’s no question that Article Two contains allegations of criminality.

Conclusion: The Crimes Are In There

Once again, you don’t need to prove specific federal crimes for impeachment. But those who argue that these Articles of Impeachment are not based on criminal misconduct are wrong. The Articles may not cite specific federal statutes, but the conduct they describe would be indictable under several federal criminal laws.