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Mueller As Trump’s‘troublesome Priest’

August 4, 2018

In the course of former FBI Director James Comey’s testimony before the Senate Intelligence Committee on June 8, 2017, students of medieval history, if no one else, might have noticed that Comey and Maine Sen. Angus King cited Henry II in describing an incident wherein President Trump allegedly advised Comey that he “hoped” Comey’s FBI would see fit to end an investigation into former NSA chief Michael Flynn. The quote, “will no one rid me of this meddlesome priest?” refers to an incident dating back more than 800 years, and it’s modern interpretation may or may not form the basis for an obstruction of justice investigation into Trump. In 1170, Henry II, then King of England, found himself in political conflict with Thomas Becket, then Archbishop of Canterbury, as to the coronation rights of the Catholic Church in England. (Pre-Reformation England was still a Catholic country, and Becket, as Archbishop of Canterbury, was the Pope’s representative in England as opposed to the head of the Anglican Communion.) Subsequent to a particularly nasty quarrel that resulted in Becket’s excommunication of several of the king’s political allies, Henry is said to have cried “what miserable drones and traitors have I nourished and brought up in my household, who let their lord be treated with such shameful contempt by a low-born cleric?” Understanding Henry’s words as an instruction to murder Becket, four knights set out for Canterbury the following day, and, on Dec. 29, 1170, killed Becket on the steps of Canterbury Cathedral. Over time, Henry’s exclamation has been commonly paraphrased as “will no one rid me of this turbulent priest?” a variation of which was referred to by King and Comey. More important than the etymology of a medieval expression, however, is its application and relevance to a particular set of circumstances in modern Washington. In 2017, Comey stated that he interpreted Trump’s expression of “hope” that the FBI would drop its investigation into Flynn as an instruction to do so. In support of same, he cited Henry’s cry of exasperation with Becket, his knights’ interpretation of same, and the subsequent murder of Becket. Republican senators, then and now, downplayed the legal significance of outwardly “hoping” for a particular outcome, and suggested that no one had ever been convicted of a crime for expressing their hope that someone else engage in particular conduct or advance a particular outcome. This week, however, some observers saw President Trump’s tweet that Attorney General Jeff Sessions “should end this Rigged Witch Hunt right now” as a similarly veiled (or not) instruction to the Justice Department to end the Mueller investigation into Russian election interference. Those observers have rightly noted that Sessions, like Comey, is an executive branch subordinate of the president whose position remains subject to his approval, and that a reasonable person, like the knights errant of 1170, might interpret the president’s expression as a directive or instruction to accomplish a particular goal. The president’s allies have responded that the president was merely expressing an opinion, and that Sessions could not end the Mueller probe if he wanted to, as he formally has recused himself from that investigation. Obstruction of justice is defined in federal law, which provides that “whoever . . . . corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be (guilty of an offense).” Thus, for a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know that a proceeding was actually pending at the time, and there must be a nexus between the defendant’s endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus. It is fair to say that the president was aware of the specific investigations pending. It is less clear as to whether his expressions were made with the specific intent to obstruct these investigations. At issue is the purpose, and legal implication, of an individual in a position of power suggesting or outwardly hoping for particular conduct from his deputies, and whether the subordinate listener may rightly interpret such language, verbal or otherwise, as a direction or instruction. Such were the circumstances which preceded Becket’s death, and upon which any investigation of President Trump for obstruction of justice may hinge.

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