Former President Donald Trump was indicted on Thursday on seven federal charges, including conspiracy to obstruct false statements and conspiracy to obstruct, two sources briefed on the charges confirmed to NBC News. The charges from special counsel Jack Smith spring from the Justice Department’s probe of why over 100 classified documents were recovered from Trump’s Mar-a-Lago estate last August, even though a subpoena had demanded he turn them over to the government.
It is the first set of federal criminal charges against Trump, but not the first time that his actions have been viewed through the lens of obstruction. If anything, as my MSNBC colleague Jordan Rubin has noted, this second indictment finally acknowledges that obstruction has long been Trump’s most obviously criminal behavior. The indictment, then, both somewhat vindicates former special counsel Robert Mueller and condemns Republicans who have defended Trump over the years in the face of similar evidence.
Trump’s attempts to throw up roadblocks in court, so successful when he was president, are crumbling as a private citizen.
In charging that a conspiracy to obstruct existed, Smith accuses Trump of attempting to stymie the return of documents to the National Archives and Records Administration even after a grand jury issued a subpoena for their return in May of last year. It was clear that the Justice Department was less than convinced that Trump was fully cooperating, even after his lawyers attested in a signed statement that all relevant materials had been turned over. When the FBI sought a warrant to search Mar-a-Lago in August, the affidavit stated that there “is probable cause to believe that evidence of obstruction will be found.”
While it may seem from the outside like the easiest of charges to file against someone like Trump, the statutes establishing what constitutes “obstruction” can be tricky to make airtight. A conviction generally requires proving three points: an obstructive act occurred or was at least attempted; it happened in relation to an official proceeding, like, say, an FBI investigation or subpoena; and there was a “corrupt intent” behind the action.
It’s that last one that has been surprisingly difficult with Trump, despite his seeming lack of subtlety in insisting that he can do whatever he wants. He almost never writes down his instructions to his subordinates, finds it suspicious when staffers do take notes, and, as his former lawyer and fixer Michael Cohen has testified, he has a tendency to imply what he’s after rather than outright demand it.
As special counsel, Smith — like Mueller before him — is empowered to investigate not only the potential crimes the attorney general has assigned, but also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.” And in the course of his look into the Russia probe, Mueller identified at least 10 instances in which it appeared Trump was trying to impede his work.
Lawfare’s Quinta Jurecic narrowed that down to four or five instances that met the bar for obstruction across all three points. But while the report didn’t exonerate Trump, no matter what he or then-Attorney General William Barr claimed, Mueller felt that Trump’s position as a sitting president prevented a firm prosecutorial declaration that a crime had been committed. Importantly, he also made clear that he felt unable to outright say that a crime had not been committed.
Thankfully, Smith is free from the constraints Mueller faced.
Instead, Mueller left the decision of what to do with his report’s conclusions up to Congress. Constitutionally speaking, this was a valid choice. Practically speaking, though, it quickly became clear that his self-imposed ambiguity didn’t have the effect he’d hoped.
Even with the roadmap that Mueller provided, Congress did not move to fulfill its constitutional obligations. This at least partially reflected the views of then-Speaker Nancy Pelosi, D-Calif., who believed impeachment would be too divisive politically.
But that doesn’t absolve congressional Republicans. It was entirely in their power to prove Pelosi wrong and call for action against a president who had clearly tried to circumvent the legal system he was sworn to uphold. Instead, they echoed Trump’s framing of the report as a “complete and total exoneration” and decried the “witch hunt” against Trump.
They repeated that talking point in the next round of investigations when Trump’s obstruction of any investigation into his behavior was shown to be a pattern, not a fluke. During the impeachment investigation that began later that year, regarding allegations that Trump attempted to extort Ukraine into investigating Joe Biden, Trump was no more forthcoming with congressional investigators than he was with the Justice Department. The White House ordered a total refusal to cooperate with the House’s probe. Though some brave civil servants still agreed to testify, reams of documents were withheld, and witnesses at the upper reaches of the administration refused to sit for interviews. Tellingly, when Trump finally was impeached, one of the charges against him was “obstruction of Congress.” Yet an impeachment trial is a political affair, not a legal one, leaving the Senate GOP to shape its scope and length, making Trump’s acquittal all but guaranteed.
Thankfully, Smith is free from the constraints Mueller faced. Trump’s attempts to throw up roadblocks in court, so successful when he was president, are crumbling as a private citizen. Smith has been able to go where the evidence led him and, crucially, say exactly what he found. And this time, it will be up to a federal judge and jury to determine if Smith has made his case, with no need to rely on Republicans doing the right thing to see Trump held accountable for thinking himself above the law.
