Simple. What if obstruction of an investigation ac

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Martha Stewart to Donald Trump: Can there be obstruction of justice with no underlying crime?

By Louis Jacobson on Monday, March 25th, 2019 at 4:51 p.m.

https://www.politifact.com/truth-o-meter/arti...obstructi/

"Then interfering with the investigation is a crime. The reason is that the purpose of the investigation is to find the truth, and if people obstruct an investigation, then the investigation becomes more difficult, wasting government resources."

Obstruction of a non-crime?

Legal experts told us that a president (or anyone) could still be prosecuted for obstructing justice if they believed they might be prosecuted — even if they ultimately never are.

"You can obstruct justice even if a prosecutor ultimately finds you were not guilty of committing the crime that was the focus of the underlying investigation," said Miriam Baer, a professor at Brooklyn Law School.

"Even if a prosecutor ultimately concluded that you weren’t guilty of crime X, that says nothing as to whether you thought that you might be indicted for crime X, or, for that matter, if you thought one of your friends of family members would be indicted for crime X."

Eric Posner, a professor at the University of Chicago Law School, agreed that an obstruction prosecution could have been argued in this case.

"Suppose Trump knew that no crime had been committed but believed that the investigation would uncover politically or personally embarrassing information, or if he believed that the investigation would embarrass or implicate an ally, aide, or family member," Posner said.

"Then interfering with the investigation is a crime. The reason is that the purpose of the investigation is to find the truth, and if people obstruct an investigation, then the investigation becomes more difficult, wasting government resources."

That said, an obstruction case is naturally going to be stronger if there is an underlying crime that’s being prosecuted, said Ric Simmons, a professor at the Ohio State University Moritz College of Law.

It is "technically possible, but the legal and practical challenges in winning such an obstruction case would be great," Simmons said. "A prosecutor would have to prove that the president believed there was a collusion case ‘contemplated’ against him even when he did not engage in collusion. That is theoretically possible, but hard to prove to a jury."

The cases of Stewart and Libby

The highest-profile example of trying a case of obstruction without an underlying crime that our experts could think of was the prosecution of Martha Stewart, the founder of a popular lifestyle and media company. Stewart was tried on charges related to her sale of 4,000 shares of ImClone, a pharmaceutical company, one day before the company’s stock price plummeted.

The charges of securities fraud were thrown out, but prosecutors persisted with charges of obstruction of justice and lying to investigators. She was found guilty of four counts and in 2004 was sentenced to five months of prison, five months of house arrest, and two years of probation.

Stewart "surely feared reputational and business harm" even in the absence of a crime, said Robert Weisberg, co-director of Stanford University’s Criminal Justice Center.

Another notable example is the case of Scooter Libby, a former top aide to Vice President Dick Cheney, said Samuel Buell, a law professor at Duke University. Libby was charged by a special prosecutor with obstruction, perjury and false statements, but not any underlying crime related to the outing of a CIA employee, Valerie Plame. (Trump pardoned Libby.)

What about Watergate?

Legal experts said there are echoes of Watergate in the current situation.

James D. Robenalt, an attorney with the firm Thompson Hine LLP and creator of a continuing legal education class on Watergate, said the parallels are striking.

President Richard Nixon "knew nothing about the break-in at the Democratic National Committee before the Committee to Re-Elect the President caused it to happen, and the White House — but for one, maybe two tangential people — did not know about the crime." So Nixon could not have been prosecuted for the break-in, nor could other key White House officials, he said. Yet "they all covered up and obstructed justice to protect the Committee to Re-Elect the President," Robenalt said .

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