Napolitano: Why Was President Trump Not Charged With Obstruction Of Justice? "Is The President Above The Law?"


Fox News senior judicial analyst Andrew Napolitano raises questions about Attorney General Bill Barr's conclusion that President Trump didn’t commit obstruction of justice.

ANDREW NAPOLITANO: What is obstruction of justice? Late last week when the Attorney General of the U.S. released a redacted version of the report of the special counsel Robert Mueller into Russian interference with the 2016 election he made a number of conclusions.

One is that the Russians did materially and substantially interfere. They probably did not affect the ultimate outcome but they did interfere. They were physically here and they were digitally here.

Two is that even though the Trump campaign had 127 documented communications with these Russians between July 2015 when the campaign started and November 2016 when it ended -- 127 communications -- the government was unable to prove a conspiracy or illegal agreement between the campaign and the Russians to interfere with the outcome of the election.

The third conclusion that Mueller came to is a little bit more troublesome. That conclusion is that the president of the United States probably committed the crimes of obstruction of justice but probably should not be charged for them. That's a head-scratcher. Is the president above the law? What do we do if the president commits a crime? Do we let him get away with it?

The crime is not a difficult one to understand. Obstruction of justice, the statute making obstruction criminal prohibits interfering or attempting to interfere with a criminal prosecution or an investigation that the government is conducting. So if I'm about to go into a courthouse and testify against my neighbor, and the neighbor's kid comes and tackles me to prevent me from getting into the courthouse and I eventually pick myself up and get in to make the testimony, the neighbor's kid can be charged with obstruction of justice because he attempted to interfere with the work of a jury that was waiting to hear my testimony.

So when Bob Mueller said the president of the United States did about a dozen things to slow down, impede, negate, or interfere with the investigation of his campaign, or of his former national security advisor, Gen. Michael Flynn, that is a serious allegation of criminal activity. So when the president asked his former advisor and my former colleague at Fox News, KT McFarland, to write an untruthful letter to the file, knowing the government would subpoena it, that's obstruction of justice. When the president asked Corey Lewandowski, his former campaign manager, to get Mueller fired, that is 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 the president asked Don McGahn to go back to the special counsel and change his testimony that's obstruction of justice. When he dangled the pardon in front of Michael Cohen in order to prevent Cohen from testifying against him that is obstruction of justice. Why not charge him?

Because the attorney general would have locked 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, that's not what law enforcement believes, and that is not what prosecutors do. Prosecutors prosecute people who interfere with government functions. That is what the president did by obstruction.

Where is this going to end? We don't know. But I'm disappointed in the behavior of the president. His job is to protect and defend the Constitution of the United States, to uphold and to enforce federal law, not to violate it.

If he had ordered his aides to violate federal law to save a human life or to preserve human freedom he would at least have a moral defense for his behavior. But ordering obstruction to save himself from the consequences of his own behavior is unlawful, defenseless and condemnable.

Show comments Hide Comments

Latest Political Videos

Video Archives