AP Photo/Jacquelyn Martin
Peter J. Wallison
Corey Lewandowski’s congressional testimony this week — confirming that President Trump had directed him to contact Attorney General Sessions and ask that the Mueller investigation be shut down -- excited interest among some commentators. For them, this confirmed that the president had obstructed justice by engaging in a corrupt act.
This is a mistaken interpretation of what is a corrupt act in the context of an alleged obstruction of justice. Bringing a little common sense to their judgments would have helped these commentators — along with Democratic members of the House Judiciary Committee as they conduct an impeachment probe — to come to a more sensible conclusion.
When a guilty person tries to shut down an investigation of his unlawful activity he is certainly acting with corrupt intent. Aware of his guilt, he is attempting to protect himself and thus is acting corruptly.
But, clearly, an innocent person cannot be charged with corrupt intent or obstruction of justice if what he is attempting to do is shut down an investigation that will do him unnecessary harm.
Let’s assume that John Doe learns that a district attorney has opened an investigation of whether Doe has been embezzling funds from his business. Doe knows that he has not done anything of the kind, but he also knows that if the existence of the investigation becomes widely known in the community his business could be destroyed. Most people would agree that under these circumstances Doe can certainly hire a lawyer to meet with the district attorney, show him the business’s books and other financial information in order to persuade the official to abandon the case.
However, if the DA tells Doe’s lawyer that he is not persuaded by the financial presentation and will continue to press the investigation, what options are then available to Doe, and which of these options would, if used, reveal a corrupt intent?
Clearly, every citizen has the right to protect his reputation and his business from a harmful government inquiry. So Doe could properly contact the DA’s friends and political supporters, including those who contributed to his previous campaigns, and ask them to press for stopping the investigation. Since he knows he has done nothing wrong, and his purpose here was to prevent harm to himself, his intent could not have been corrupt.
The examples could be multiplied, with the same outcome. A person who is not guilty of a crime or other activity for which he is being investigated has no obligation to wait for the DA to finish the investigation and hope that he is cleared. This is particularly true when the fact of the investigation could have adverse effects even if he is eventually cleared of wrongdoing.
We all remember former Secretary of Labor Ray Donovan’s comment after he was cleared of a well-publicized investigation of his business: “Will someone please tell me where I can go to get my reputation back?”
Fortunately, it is rare that a completely innocent person is investigated by law enforcement officials, but it happens. And it seems to have happened with the Mueller investigation of President Trump. This appears to be one of those rare cases where a completely innocent person was investigated for something he did not do.
Charging him for obstruction of justice, or for having a corrupt intent, for trying to stop a harmful investigation that should never have been launched, is absurd.