This is weird, interesting and provocative, both on the question of whether Robert Mueller could or should have recommended an indictment of Donald Trump for obstruction of justice, and on the question of Fox News’ commitment to honesty or objectivity. It’s also slightly confusing.
Eventually, it drags Alan Dershowitz, the famous trial lawyer and civil libertarian, into the picture. And finally, it raises the matter of what might be called Trump Derangement Syndrome.
But it starts with retired Judge Andrew Napolitano, who is a regular Fox News analyst on legal matters. He has been a Donald Trump admirer, and the feeling has been mutual. Trump reportedly told Napolitano that he was under consideration for the Supreme Court appointment that ultimately went to Brett Kavanaugh.
Apparently, after the Mueller report came out, Napolitano developed a strong conclusion that Robert Mueller’s team had found significant evidence that Donald Trump could and should be charged with obstruction of justice.
As you know, Mueller ultimately did not seek or explicitly recommend such a charge, but he did state in his report that the evidence “did not exonerate” Trump on obstruction. There’s been a lot of discussion about why Mueller took that position, including that Attorney General William Barr believes that it’s impossible for a president to be charged with obstruction of justice, except perhaps by Congress in an impeachment case. (Obstruction was one of the charges against Richard Nixon on which he was facing impeachment, and the House Judiciary Committee had voted in favor of such a charge, but Nixon resigned before the matter came to a vote in the full House.)
Fox has not to date, given Napolitano air time to explain why he believes Trump obstructed justice. Perhaps that’s consistent with your view of Fox’s willingness to generally serve as a biased cheerleader for Trump. Time will tell whether Fox will fall out of love with Napolitano over his heresy.
But here’s the weird thing that I stumbled on thanks to this Slate piece. Fox also provides space on its online platform for Napolitano to give his views of legal matters under the title of “Judge Napolitano’s Chambers.” And he used it, to lay out, in eye-watering detail, his view that Trump obstructed justice.
I’m not a former judge and I don’t have a law degree. Relying on my lay understanding of what obstruction of justice is, it looks to me as if Trump was working to sabotage the investigation, which makes him look like he has much to hide and took steps to hide it.
But a separate crime? My opinion is worthless. As you know, Trump conveniently appointed Barr as attorney general, and Barr conveniently believes that, as Nixon once said, “if the president does it, that means that it’s not illegal.”
(In fairness to Nixon, I should add that when he said that, he meant that nothing the president does in furtherance of the U.S. national security interests can be illegal. Barr apparently believes that, since the president is the boss of the U.S. Department of Justice, he cannot obstruct justice.)
In a segment of “Judge Napolitano’s Chambers” embedded below, Napolitano explored this. He defines what constitutes the crime of obstruction, goes over what the Mueller evidence shows Trump did in various efforts to impede the investigation into his Russian ties, and makes a slam dunk case that those efforts had — in spades — the elements of obstruction of justice.
I’ll embed the video below. But here’s my transcription of the key section of Napolitano’s argument:
So when Mueller says the president of the United States did about 12 things to slow down, impede, negate or interfere with the criminal investigation of his campaign of or his former national security advisor Michael Flynn, that’s a serious allegation of criminal activity.
So when the president asked his former advisor K.T. McFarland… to write an untruthful letter to the file, knowing the government would subpoena it, that’s obstruction of justice.
When the president asked his former campaign manager Corey Lewandowski to get Mueller fired, that’s obstruction of justice.
When the president asked his then-White House counsel to get Mueller fired and then lie about it, that’s obstruction of justice.
When told Don McGann to go back to the special prosecutor and change his testimony, that’s obstruction of justice.
When he dangled a pardon in front of Michael Cohen in order to keep Cohen from testifying against him, that’s obstruction of justice
Why not charge him? Because the attorney general of the United States would have blocked such a charge. Because the attorney general is of the view that obstruction of justice can only occur if you’re interfering with a criminal investigation of yourself. But that’s not what the obstruction statute says. And that’s not what law enforcement believes. And that’s not what prosecutors do. Prosecutors prosecute people who interfere with government functions. And that’s what the president did by obstruction.
The legal case is clear to Napolitano. He goes on to argue that Trump doesn’t even a moral argument, like that he was obstructing justice to save someone’s life or something: “But ordering them to break federal law to save him from the consequences of his own behavior, that is immoral, that is criminal, that is defenseless and that is condemnable.”
So Fox hasn’t allowed Napolitano to say this on the air, but they have allowed full video of it to run on run on their website, as part of Judge Napolitano’s Chambers, here:
Watch the latest video at foxnews.com
So that is a piece of evidence that the usually Fox-and-Trump-aligned Napolitano is willing to call them as he see them.
And puzzle number one (or maybe it’s number two, or two in one) is why Fox will let Napolitano say this in a video on their website, but not on the air.
As I mentioned, I don’t know whether Napolitano is right or wrong, but I found it interesting.
Then I discovered that Alan Dershowitz had publicly contradicted Napolitano’s view. His position is that Trump hasn’t obstructed justice, because to do so you have to go beyond your legitimate powers.
If you’re younger than me, maybe Dershowitz isn’t too big a name. But, for decades and decades he’s been a large figure in the pantheon of big-name American legal brains, a Harvard law professor, a brave defender of civil liberties, a prolific author and frequent guest on television. He considers himself a liberal, and I considered him one, too.
Now, at 80, Dershowitz is a Trump friend, apparently talks to Trump fairly often and, lo and behold, thinks the argument that Trump obstructed justice is a bum rap, for the reason mentioned just above.
In these increasingly tribal days, we expect people to stick with their tribe. Not that it’s desirable or admirable to say that what’s wrong is right, just because it suits the immediate needs of your tribe. It’s just that we expect it.
Maybe, at least in this instance, Napolitano and Dershowitz are rising above that expectation, and calling them as they see them. I’d kinda like to believe it. Do you believe it?