Elements of Obstruction of Justice



Fredricka: Joining me right now, CNN Legal Analyst, Michael Zeldin, Robert Mueller’s former Special Assistant at the Department of Justice. Good to see you. And here in Atlanta with me, CNN Legal Analyst and Defense Attorney Page Pate. Good to see you as well. All right, so Michael, let me begin with you. So, a second special counsel to investigate the DOJ, FBI. Necessary?

Michael: Well, I don’t think it falls within the purview of the regulations. I don’t understand why, if there’s anything that needs to be investigated here, the Justice Department can’t investigate it itself. But, beyond that, there is an Inspector General report that is being undertaken, and I think that it would behoove all of us to wait to see what the Inspector General says about the communication that Struck had during this campaign to see whether it’s actionable in the first place, and if it is actionable, whether or not it can be handled properly by the DOJ, or whether it needs to go outside the DOJ. So, I think Senator Graham is a bit premature in his call for a second special counsel.

Fredricka: All right, Page, I saw you nodding. Apparently, you’re in agreement with that?

Page: Yeah, I think the Office of Inspector General should look at this first. I mean, we’ve got to stop thinking about the Justice Department as a tool in the political arsenal. This is supposed to be mostly, I understand it’s in the executive branch, but independent as far as criminal investigations. Because if we’re going to have any credibility in what the Department of Justice does, we have to believe that it’s free from political influence and…

Fredricka: And disciplinary action was taken. I mean, he was removed once the discovery was made. You know, meantime you’ve got, you know, Senator Graham, along with Senate Judiciary Chairman, Chuck Grassley, also referring the author of that infamous Russian dossier, Christopher Steele, now, to the Justice Department for possible criminal prosecution over potential false statements. And now, yet another type of investigation. Does that kind of muddy the water or is there real credence there?

Page: I mean, I don’t know. Based on what we’ve seen reported, I don’t think there’s evidence of a crime that was committed there. But again, if we’re diverting Department of Justice resources, basically on a political witchhunt or an attempt to be proactive and to go on the offense instead of being on the defense, then we’re misusing the Department of Justice. We’re misusing the prosecutors, the agents, who are there to protect us and investigate legitimate crimes.

Fredricka: So Michael, how do you see this, and which is it, the White House sending a message that the DOJ can be trusted or that it can’t be trusted?

Michael: Well, it’s clearly sending a mixed message. The earlier reporting today in the New York Times, that the White House Counsel, the communications guy Spicer, and Chief of State Priebus, all going over to speak to Sessions to implore him not to follow what the law requires him to have done, which is to have recused himself, which he did properly…

Fredricka: For a conflict of interest?

Michael : …right, speaks to pressure that Page is talking about that really doesn’t belong in the criminal justice system because it undermines the integrity of that system. So, when you have Grassley and Graham sending a referral to the FBI, the first and only referral, being that of the author of the Steele…

Fredricka: Dossier.

Michael: …dossier, it just creates all sorts of appearances that make this appear to be political. And that, I think, is really troublesome.

Fredricka: And then, today, you have a White House Advisor, Stephen Miller, on with Jake Tapper earlier today, trying to downplay the report in the New York Times about a draft letter that Bob Mueller and his team have, which makes the inference that, you know, the White House had a direct hand in the firing of James Comey and a connection to the Russian investigation, etc. So Miller tried to make the case that the Russian Investigation had nothing to do with the firing of Comey, contradicting the President’s own words when he was talking to NBC. Here’s a recollection of that interview.

Stephen: The final draft of the letter has the same line about the fact that there is a Trump-Russia investigation that this has nothing to do with.

President Trump: I was going to fire Comey knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself, I said, “You know? This Russia thing with Trump and Russia is a made up story.”

Fredricka: Okay, so, Page, the President has said he’d be willing to talk to Bob Muller. So, whether it would be under oath or not, that makes a difference, that he said on the record, in an interview, one thing, and now his folks are trying to say something else.

Page: Fred, I don’t know that they realize what they’re doing here. I mean, let’s go back up for a second. There’s nothing wrong with the President interfering with an investigation in the Department of Justice. He’s the Chief Executive, the Justice Department is under the Executive. He can decide that an investigation needs to stop, one needs to start. Technically, that’s his job. The question about obstruction, the issue that the Special Counsel’s office is looking at, is did he act with corrupt intent? Was he trying to protect himself, his family members, his business interests? So, while a President does have influence over the Justice Department, that’s the way the Constitution is designed, our separation of powers, he cannot act with an improper influence. So, the different statements…

Fredricka: So, when the President said, just last week, “I can do whatever I want with the Justice Department”, you’re saying?

Page: Not so. Not when he acts with a corrupt intent, when it’s more about him than about the country. So, all of these misstatements, all these inconsistent statements, they’re not on the same page. That can be evidence of that corrupt intent.

Fredricka: All right, Michael, last word on that?

Michael: Well, I think that the putting together of an obstruction of justice case is a complicated process with lots of little pieces of a mosaic that have to be added together. I don’t yet think that we are there, but when you see things like deconstruction by Stephen Miller, or the ordering of McGahn to go speak to Sessions about a recusal that the law requires him to do, all those things get to be factored into the process. And Mueller will have to figure out whether or not it rises to the level of an indictable offense or an impeachable referral. I don’t see it yet, but they are not helping themselves in any way, shape, or form in the way they’ve been proceeding with this investigation, which should be, “Let it go, let’s be quiet, and we’ll see what happens.”

Fredricka: And of course, this is assessing all the stuff that’s public.

Michael: Right.

Page: Right.

Fredricka: Stuff that’s not so public?

Michael: That’s exactly right.

Fredricka: We don’t know.

Michael: We don’t know.

Page: We don’t know everything.

Michael: That’s right. We don’t know what Mueller knows.

Fredricka: All right, Michael Zeldin, Page Pate, thanks to both of you, appreciate it.

Page: Thank you.

Michael: Okay.

Fredricka: We’ll be right…


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