President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey. According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn. In this post I want to briefly examine the legal doctrine of obstruction of justice.
To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell. That’s the gist behind the constitutional prohibition of ex post facto laws. Laws with vague terms raise the same danger. When laws are vague, police and prosecutors can abuse their power and trap people. And that’s the danger with a catch-all doctrine such as “obstruction of justice.”
“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation. Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.” Don’t the courts restrain those abuses? Yes, sometimes they do. I’m presently editing a book of Judge Alex Kozinski’s legal opinions. One case, United States v. Caldwell, touches on this subject.
Read more at https://www.cato.org/blog/obstruction-justice
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