An obstruction of justice case against Trump?

Here's the form it might take

Donald Trump’s legal difficulties continue to mount. Some of the cases against him are either frivolous, inconsequential, or both. Alvin Bragg’s case seems frivolous, although it’s headed to trial. E. Jean Carroll’s latest go at Trump seems both frivolous and, in the scheme of things, inconsequential.

Trump’s biggest worry might be the case that the special counsel, Jack Smith, appears to be building against him for obstruction of justice. That case would revolve around Trump’s reaction to the subpoena to turn over records he removed from the White House.

The removal itself is unlikely to give rise to charges. The fact that Joe Biden took classified documents would seem to rule out Trump being indicted for doing the same thing.

However, if Trump resisted the subpoena requiring him to return documents, the potential charge against him shifts from possessing the documents — a non-starter — to failure to comply with the subpoena. And if Trump not only failed to comply, but intentionally engaged in misdirection to avoid compliance, then the possibility of being prosecuted for obstruction becomes real.

Recent reports, if true, suggest that Trump did engage in misdirection to avoid compliance. The reports center around (1) the moving of boxes containing classified information just before the DOJ visited Mar-a-Lago and (2) the limiting instructions given the lawyer for Trump who was trying to assemble the classified documents subject to the subpoena.

As to the moving of boxes, it’s reported that video footage shows a Mar-a-Lago employee helping Trump aide Walt Nauta move boxes into a storage room on June 2 of last year. On the same day, Trump’s lawyers invited Justice Department officials to visit Mar-a-Lago.

When the DOJ officials arrived the following day, Trump’s lawyers handed over a sealed envelope containing 38 classified documents. According to papers filed by the DOJ, the officials were told they could not examine documents kept in the storage room. In August, when FBI agents secured a court order to search Mar-a-Lago, they found more than 100 additional classified documents, some in Trump’s office and some in the storage area.

The 38 classified documents turned over in June had been collected by Trump’s lawyer, Evan Corcoran. According to reports, he found the documents in the Mar-a-Lago storage room as part of a search intended by Corcoran to enable Trump to comply with the subpoena.

Corcoran wanted to search Trump’s office, as well as the storage area. However, he reportedly says, several Trump aides told him all materials brought from the White House after Trump left were kept in the storage room, so he should only search there. Therefore, he did not search the office.

If all of this is true, it suggests a two-step process to avoid turning over more than 100 documents covered by the subpoena. First, the documents were kept from being discovered by Corcoran by retaining them in Trump’s office and telling Corcoran not to search there. Second, after Corcoran had assembled the 38 classified documents he found in the storage area, the 100+ documents were moved from the office to the storage area and kept from being discovered by the Justice Department (until its raid).

One question that would have to be answered before Trump could be charged with obstruction is whether the former president was responsible for the alleged evasive actions described above. First, who told (or allegedly told) Corcoran he didn’t need to search Trump’s office? The reports say that Trump’s aides told him this. Did they do it on Trump’s orders? Did Corcoran check with Trump?

It seems implausible that a lawyer charged with collecting documents sought by subpoena would be put off the trail by the word of the client’s underlings. A good lawyer, one hopes, would check with the client before risking non-compliance by restricting his search.

It also seems implausible that underlings would limit a lawyer’s search on their own accord. In all likelihood, they would limit the lawyer to searching a storage area (and not the office) only under instructions from the client — or at least only if the client assured them that there were no documents in his office.

But all of this is supposition. If the special counsel is building a case of obstruction, he will want to nail down the issue of Trump’s involvement, direct or indirect, in determining the scope of Corcoran’s search.

The special counsel will also want to know who ordered that boxes be moved from Trump’s office to the storage room on the eve of the Justice Department’s visit to Mar-a-Lago. Again, if boxes of Trump’s documents were moved from his office to storage, it seems quite likely that Trump gave the order. But this, too, is something the special counsel will want to nail down.

In this connection, there are reports that months before the moving of the documents, Trump staged a “dress rehearsal” for moving government documents he did not want to relinquish. If true, this would lend credence to a claim that Trump was behind the moving of the documents when it eventually occurred, just before the DOJ arrived.

If the evidence shows that the “two-step” I’ve described above occurred — keeping Corcoran away from Trump’s office when classified documents were kept there and then moving the documents to the storage room just before the DOJ’s visit — and that Trump was behind it, would this make out a case of obstruction of justice? I’m not expert in this area, but I think it would.

Formulation of the elements of obstruction of justice varies from statute to statute, but generally these statutes require proof that the defendant (1) knew of a government proceeding and (2) acted with the intent to interfere with the proceeding. The federal statutes typically require that the defendant act “corruptly.” This is treated as requiring a specific intent to obstruct or impede a pending judicial proceeding.

In this case, the government could prove, I’m pretty sure, that Trump knew about the subpoena in question. And if, as seems likely, he was behind the misdirection of Corcoran and/or the removal of documents from his office to the storage area (assuming these things happened), the government would have a good shot at proving his specific intent to obstruct or impede enforcement of the subpoena.

Why did Trump obstruct or impede enforcement (if he did)? I don’t think it matters.

Still the question is interesting. I assume Trump had a reason for wanting to keep each document he chose not to turn over to the DOJ in response to the subpoena, and that the reason varied from document to document.

He might have wanted to keep some of the documents because he enjoyed having them in his possession. In the case of other documents, he might have had a less sentimental motive.

For example, Trump reportedly kept a top secret document typed by the Joint Chiefs of Staff chairman Mark Milley, in which the general laid out a plan to attack Iran. According to Mark Meadows, Milley urged Trump to approve such a plan, using a large number of troops, but Trump rejected this recommendation. Trump may have wanted to keep such a document for potential use against Milley, a very strong critic.

But again, I don’t think it matters what Trump’s reasons were for wanting to keep documents the subpoena called for him to turn over.

Assuming that the special counsel has a good case of obstruction against Trump, there’s still the question of whether he’ll bring it. He has an alternative. He could write a report presenting the case, but decline to pursue it in court.

I hope the special counsel is mindful of the implications of bringing a criminal case against a former U.S. president who also happens to be his party’s front-runner for the nomination. I hope he shares the view that such a case should be brought only if the alleged crime is one the public can easily grasp (unlike Alvin Bragg’s case, for example); only if the offense is a serious one; and only if the case is rock solid.

I think the crime of obstruction of justice by, in effect, hiding documents from the DOJ and one’s own lawyer (if this happened) is one the public can easily understand. As for its seriousness, I suppose reasonable people can disagree. I take it quite seriously, but maybe that’s because I was a lawyer. But then, so is Jack Smith

As for the strength of the case, we can only speculate at this point.