Society for law and policy hosted a discussion about what that means. Legal experts and scholars talk about how prosecutors build an obstruction of justice case. The laws governing investigation interference and how those laws might apply differently to the president and other Top Administration officials. This is an hour and a half. Good afternoon. Welcome and thank you for joining our obstruction of justice briefing. Im christian amorling. This is brought to you by a project im coordinating, citizens for responsibility and ethics in washington called the president ial investigation education project. We are grateful to senator whitehouse and his staff for graciously hosting us in this lovely meeting room and we are glad that the senator is planning to join the event a little later on to share his perspective. I want to start with a few brief thoughts about the joint acs crew project and the program today, and then ill turn things over to our moderator to kick off the discussion. The president ial investigation education project is a joint Nonpartisan Initiative of the American Constitution Society and citizens for responsibility and ethics in washington to promote informed public evaluation of the investigation by special Counsel Robert Mueller into russian interference in the 2016 election and related congressional inquiries. We do this by developing and disseminating analysis of key legal issues emerging in the investigations by connecting interested members of the public, press and policymakers to the Extensive Network of legal scholars and experts associated with crew and acs, and by Holding Events like todays briefing. We are driven by a view that the issues at stake in these inquiries are serious and have potential consequences and by an awareness that developments are resulting in legal questions that at times are very complex. We want to promote thoughtful thorough public consideration of these issues that is grounded in legal and constitutional analysis, amid the challenge that we all face of the hectic and high volume news cycles. So toward this goal, todays event focuses on obstruction of justice. We have convened a very distinguished panel of constitutional and criminal law experts, and we are focusing on this topic because obstruction of justice is an area of law that is in the scope of the inquiry by Robert Mueller, as set forth in the order appointing him, and since that appointment there have been multiple reports suggesting that he may be looking at obstruction issues. So the panel today will examine a variety of legal questions relating to obstruction of justice law and precedent. We will also have some time at the end for audience questions. One housekeeping note, for those of you in the audience interested in getting a cle credit for this event it qualifies for 1. 5 hours and you can sign up outside the door of this room. With that, i hope you enjoy the event and i will introduce our moderator, who will then give additional background about our distinguished panel and kick off the discussion. We are very fortunate to have Kimberly Atkins facilitating the conversation today. She has background both in law and journalism, and currently covers the white house, Supreme Court and congress for the boston herald, and in addition, is a guest host on cspans washington journal and is a contributor at msnbc. We know she is skilled at fostering lively and informative discussion and i will turn it over to her to get that started. Thank you. Thank you, christen and you all for joining us today for this very timely discussion about obstruction of justice. I have the pleasure to introduce our very esteemed panel for this discussion. Ill keep the introductions brief. You have their full bios in your materials for your review. We have ambassador norman eisen. He is chairman of the board of citizens for responsibility and ethics, as we said is a cohost of this event. Hes also a cofounder of crew. He previously served as the chief ethics lawyer for president obama and in that role he was dubbed mr. No for his cough Compliance Program he implemented at the white house. Hes also served as ambassador to the Czech Republic and since 2014 has been a visiting fellow at the brookings institution. Across the way we have barbara l. Mcquaide, a professor from practice at the university of michigan law school. She served as the u. S. Attorney for the Eastern District of michigan, the first woman to serve in that post. As a u. S. Attorney she oversaw cases involving public corruption as well as other areas of law public corruption as well as other areas of law. She serveds an assistant u. S. Attorney in detroit, my hometown, for 12 years. Judge sugarman teaches at Fordham Law School is is the author of the peoples court, pursuing Judicial Independence in america. And he is currently working on an anticorruption emoluments on the trump administration. He writes about law and politics on the blog, sugarblog. Com. As kristen said wreesh also expect to be joined by the senator of rhode island a little later on. We know you will have questions during this discussion. Fear not, we will have time at the end of the program to take your questions. So just hold onto them and know we will get to that. So i want to kick off this discussion just talking about some of the key federal obstruction and justice laws that are in place, sort of setting up the legal landscape, how it exists as we begin this discussion. And i want to start with norm. Thank you. Thank you, kim, and thanks everybody for joining us today. And im very pleased to be here representing crew as part of this president ial investigation project that we do together with acs. I must say and by the way ive received a promotion on the senior fellow of brookings now. They must like trouble making over there. I must say that in my america which began with 20 years of law practice here in washington, d. C. Principally as a criminal defense lawyer. I never imagined that i would see the day when the most pressing public question was the elements of an obstruction of justice claim and whether the separation of powers prohibits obstruction proceedings against a sitting president of the United States. Whatever downsides there are to the era of trump it has made law students of all of us, students of america in law of the world. So that is a silver lining. The crime of obstruction of justice is one in engloamerican law. And of course we trace our roots kim, how long do you want me to go for . Five minutes, okay. Its one that is as old as the idea of justice itself. Because, of course, as soon as you have a notion that individuals are going to be held accountable to the law, you have efforts to evade that accountability. And while there are a variety of obstruction of justice statutes, each of which has their own distinct elements and the case law is intricate, outside on the table there are copies of our brookings report on president ial obstruction of justice, which i did myself as a former defense lawyer, with my crew, a former prosecutor and a very distinguished currently practicing criminal defense lawyer in new york. And include the appendices well over 200 pages long and has dozens of pages talking about the elements. And i commend to your attention these are actually the issues Robert Mueller is grappling with. But i made an effort to boil it down for you, particularly now that i only have 3 1 2 minutes left. If an individual, any individual including the president of the United States because in our system no person is above the law. If any individual attempts to interfere with, block, frustrate or otherwise impede a criminal investigation with corrupt intent, then that is obstruction of justice in a nutshell. The most critical question is what is corrupt intent . And the case law, its been ruled on by all of our u. S. Circuits. The case law is very interesting because it goes right to the heart of ethical, of moral questions that lay just underneath the criminal law. Just underneath all those lengthy provisions in 18 United States code are a set of moral questions. Obstruction of justice, corrupt intent is addressed by the courts as theres no cookie cutter. Theres no simple test. It is evil or wrongful intent in taking an action. So if a president fires an fbi director because the president genuinely believes that that fbi director is not doing a good job or is not competent or has not been following policies, no corrupt intent. But as we explain in our report, if a president fires an fbi director and engages in other misconduct, demanding loyalty, asking the fbi director to drop an investigation, particularly if the president knows that the investigation is meritorious, if the president should know, for example, that the thing being investigated is a lie to the fbi, you dont need a law degree to know thats a violation. That is a textbook case of corrupt intent. Because the things you look for in defining corrupt intent are is the president trying to benefit himself, a Family Member, a friend, a former close associate . Is the president trying to hide something . So there clearly ought to be an investigation, and there can be no question now that there is an investigation by Robert Mueller of President Trump for obstruction of justice. It is not a lay down that obstruction occurred. And many people are saying and again not to shamelessly flog our report, we did work very hard on it. I think we were pressured in investing all those months into this big analysis. Its the only other place youll find Something Like this in the world, theres only two other places. Youll find it on Robert Muellers desk where his team has a running analysis for him how the evidence lays out the law, and youll find it on the desk of the Trump Defense team. Ty cobb and the others who are doing something similar, trying to fit this long body of cases and doctrine into the facts here. We did not glean neither of these memos on the inside, those memos which are never intended to see the light of day, dont lean one way or another. They take a look at how the facts apply to the law and they argue both ways. You need to be very objective when youre doing this work. It is not a lay down case. A lot is going to come down to which of trumps many and shifting explanations he offers to mueller when he talks to him. The special counsel will surely want to talk to trump. And whether believes him despite trump having perhaps the lowest truth rating of any president to occupy the oval office, and whether that explanation is an innocent one or a corrupt one, and whether the president is telling the truth, we dont know yet what judgment mueller is going to make. Part of the reason were cautious is whether its an indictment and theres some legal issues with that, whether it is referral to congress of the kind that was made in the watergate case relating to obstruction, the bar is a very high bar when youre proceeding against the sitting president. So it is by no means a lay down. It is a hard question. We have tried to address it, to take a seriously. But the one final thing ill say and my colleagues are going to talk more about this one particular. The notion that there is a legal obstacle, that any american case law impedes an obstruction prosecution of the president is sheer nonsense. There is no warrant for that in the Supreme Court cases, if anything, morrison v. Olson and the other things go in the other direction. Just like the president , individuals are prosecuted for exercising otherwise legally authorized powers. So that need not detain us for long, but were forced to talk about it because the president s and his lawyers have endorsed it. I hope i havent intruded on your presentation, but i would be remisif i didnt add that. I want to go to barb next and talk why is the obstruction of justice charge important to prosecutors, and how do you approach such a case, and what are the challenges . Thanks, very much, kim. Its an honor to be here today. Thank you to the American Constitution Society for the invitation and very honored to be with norm and jed on this important topic. As a former federal prosecutor obstruction of justice is a charge we took very seriously. The criminal Justice System depends on people to tell the truth. Thats how the whole system works. When witnesses come into court, we put them under oath. When they testify before the grand jury, that are sworn to tell the truth. When an fbi agent questions and interviews a witness, they are told that lying to investigators is a crime. And why is that . Because we want them to be on notice that its so very important that they tell the truth, its essential to the success of an investigation. And if that quest to tell the truth is to mean anything, then we have to hold people accountable when they lie so that we can deter people from lying to investigators, lying in court, lying before a grand jury in the future. We do that by prosecuting people who lie or otherwise obstruct justice, who intimidate witnesses, who alter or destroy documents or otherwise interfere with investigations. It is critical to the integrity of our criminal Justice System. And if conduct who obstruct justice goes unchecked, it makes investigations take longer. It makes it harder for investigators, and sometimes crimes remain hidden from the light of day because of the efforts to cover up those crimes. So for those reasons, prosecutors consider obstruction of justice one of the very most important cases that we investigate. So the other question was how does a case get built, how does a case arise . It always arises as part of some other larger investigation. And it usually begins because of some piece of information thats not consistent with other things that investigators know. A witness tells you something that doesnt add up, it doesnt match what other witnesses are telling you. It doesnt match what you know about documents. Theres something that is causing some conflict in the investigation and some suspicion that someone is lying or otherwise destroying evidence. As norm mentioned there is this requirement of corrupt intent. I tell my law students all crimes have two components, at least two components. Theres the actus reus and then the criminal act. Asking someone to lie, asking someone to stop an investigation, destroying or altering documents might be the act. The harder part of all of these cases is the mens rea, proving that intent. And one of the things a judge would instruct a jury about finding corrupt intent is to Say Something along the lines of we cant read other peoples minds. And for that reason we have to look at the totality of the circumstances to determine their intent. You should look at all the things the person said, all of the things the person did, and all of the surrounding circumstances. And from that you may use your common sense to draw reasonable inferences about the persons intent. And so those are the things that the brookings report does. In this case look at all of those factors to try to glean what was a persons intent. And then, of course, federal prosecutors also consider just because we can charge a crime, does that mean we should charge a crime. Using prosecutorial discretion is a very important part of what prosecutors do. And there is a list of factors called the principles of federal prosecution. And theres a whole list of factors that prosecutors are supposed to look at in deciding whether to bring charges. And among that list are the persons culpability, the deterrent effect of prosecution, and the nature and seriousness of the offense. And when it comes to obstruction of justice, it scores very high on that last factor, the nature and seriousness of the offense. As i mentioned, its one of the factors crime prosecutors consider the most serious because it undermines our search for the truth. Volkswagen, cheating on emission standards, lying to the epa, spewing 40 times the legal limits on its diesel vehicles and lying about those cars by creating designing software that could defeat the emissions test. After an expensive investigation volkswagen ultimately pleaded guilty to a number of crimes and paid a 4. 5 billion fine. We learned that while investigating there was a lawyer for volkswagen who said to a team of employees, you know, were going to confess to regulators that we were involved in some problems with our emissions. And were going to do that tomorrow. A litigation hold is going to go in place tomorrow. Did you hear me, i said tomorrow. And many of the employees took that to mean that they should destroy documents that might be incriminating against themselves or the company. And they did. More than 40 employees destroyed documents because of that. Ultimately volkswagen pled guilty not on this 4. 3 billion fraud. But we thought it was important to also require them to plead guilty to obstruction of justice as a deterrent and hold them actable because we considered that crime to be so incredibly important. So you can see why from a prosecutors perspective, obstruction of justice is considered one of the most important crimes we prosecute because it is so essential to safeguarding the Fair Administration of justice. Okay, and i want to take it to jed now. And were going to get into a little later exactly what we know about the current mueller investigation. But just before that, just in terms of if you are for a special counsel, what options does he have if he were to find evidence of obstruction of justice . If he were to build a case, and what historic precedent do we have that guides us to know what Robert Mueller might do if that evidence is there . So a couple of thoughts here. One i think the question a lot of people are asking oh, thank you. I was obstructing my own got it. Its on now. So the big question i think a lot of people are asking is can mueller bring an indictment against a sitting president. And these issues are really unprecedented for president s. I think the best arguments, though, are that a prosecutor may not bring an indictment again