Napolitano: Under Barr's Theory Nixon Wouldn't Be Charged With Obstructing Justice Unless He Was Actually One Of The Watergate Burglars


Reason's Nick Gillespie interviews Judge Andrew Napolitano about federal obstruction of justice laws and the historical and constitutional context of Trump's presidency.

JUDGE ANDREW NAPOLITANO: First, I reject the word collusion. That word was insinuated into our vocabulary very shrewdly I might say by Rudy Giuliani so he could say he's not guilty of collusion -- by the way, collusion is not a crime, that is a circular argument. The crime is a conspiracy. An agreement to accept something of value from a foreign national, which is unlawful in a federally monitored campaign.

I didn't see the underlying evidence but 127 communications between the Trump campaign or Trump organization and Russian intelligence in a 16-month era would be enough to prick my curiosity and look a little deeper.

But that’s not what I’m challenging him on. I’m challenging him on whether or not there was enough basis to prosecute [Trump] for obstruction of justice. And there clearly was. The reason, in my view, Bob Mueller did not ask for permission to seek an indictment under the Bill Barr managed-DOJ. He had to ask the attorney general for permission to seek the indictment because Barr has this bizarre, narrow view of the obstruction statutes, which would have caused Barr to say no.

In Attorney General Barr’s view, it is impossible to commit obstruction unless you actually committed the crime being violated, and you’re trying to obstruct efforts to investigate the crime that you’ve committed.

NICK GILLESPIE, REASON: Barr is saying because there was no conspiracy, there couldn't be any obstruction?

NAPOLITANO: Correct. If this were so, then Richard Nixon could not be charged with obstruction of justice unless he was actually one of the Watergate burglars, under Barr’s theory. That’s how absurd it is.

We also know that it’s been rejected uniformly. Mayor Kwame Kilpatrick of Detroit was convicted of obstruction of justice for interfering with an investigation into an extra-marital affair -- not a crime.

Martha Stewart was famously convicted of obstruction of justice for interfering with prosecution of her for insider trading, even though the insider trading charges were dismissed.

And very tellingly, at the very moment Bill Barr was making his you-must-be-guilty-of-the-underlying-crime nonsensical, Jesuitical, sophistry arguments, his own Department of Justice was announcing an indictment of a Massachusetts superior court judge for obstruction of justice. Her crime? She has before her an illegal immigrant charged with drunk and disorderly, a nonsense charge. In the back of the courtroom were ICE officers -this is the government's version, not hers. She says to the ICE officers, "We're going to release him into the lobby of the courthouse." Her sheriff's officers released him to the parking lot and he escaped. She was indicted for obstruction of justice. The underlying crime? Re-entry into the U.S. after deportation, which she couldn't possibly have committed.

So Barr, accepting this narrow view, and I only know two people who hold this view: The attorney general and former Harvard law professor Alan Dershowitz. Bob Mueller knew that it didn't even pay to recommend pursuing the president for obstruction of justice.

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