Did Trump obstruct justice? The media appears to have a verdict.
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Did Trump obstruct justice? The media appears to have a verdict.

December 4, 2017

The Raw Data

Unspun and unbiased. These are the facts.

Trump tweets about Flynn guilty plea, FBI investigations

Over the weekend, U.S. President Donald Trump tweeted about former national security adviser Michael Flynn, who pleaded guilty on Friday to lying to the Federal Bureau of Investigation (FBI), as part of special counsel Robert Mueller’s investigation into alleged Russian interference in the 2016 presidential election. Trump also tweeted about his firing of former FBI director James Comey.

On Friday, retired Lt. Gen. Flynn pleaded guilty to lying to the FBI about his conversations with Sergey Kislyak, the Russian ambassador to Washington at the time. He also agreed to cooperate with Mueller’s investigation, Flynn said on Friday. Flynn falsely denied that he had asked Kislyak not to “escalate the situation” in response to sanctions that then-President Barack Obama had imposed on Russia in December for Russia’s alleged interference in the election, according to court documents. Flynn also falsely stated to the FBI that the ambassador had not told him how Russia planned to vote on an upcoming United Nations resolution, the court documents said.

A tweet from Trump’s account on Saturday read, “I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

Flynn resigned from Trump’s administration in February for what he said in his resignation letter was “inadvertently” briefing Vice President Mike Pence and others with “incomplete information” regarding his “phone calls with the Russian Ambassador.”

The ranking Democratic member on the Senate Intelligence Committee, Sen. Mark R. Warner (D-Va.), and other politicians said that Trump should have addressed the situation sooner if he knew that Flynn had lied to the FBI at the time of Flynn’s resignation, as the Saturday tweet could indicate. Then on Sunday, Trump’s personal lawyer John Dowd said he was responsible for drafting the tweet and had given it to Trump’s social media director. Dowd called it “sloppy.”

In June, Comey testified that on Feb. 14, the day after Flynn resigned, Trump told the then-FBI director, “I hope you can see your way clear to letting this go, to letting Flynn go.” The president fired Comey as the FBI head in May. Trump denies he told Comey to stop investigating Flynn or fired Comey because of the investigation. “I never asked Comey to stop investigating Flynn,” Trump repeated in a tweet on Sunday morning, calling the story “Fake News.”

Trump also tweeted on Sunday that the FBI’s “reputation is in Tatters – worst in History,” adding “we will bring it back to greatness.”

Distortion Highlights

  • Legal matters, such as obstruction of justice, often involve shades of grey.
  • However, in the case of Trump’s tweets, bias and generalizations in the media suggest he definitely obstructed justice.
  • See how this potentially limits critical thinking, circumvents due process and promotes divisiveness.

Show Me Everything

The Distortion

The Knife’s analysis of how news outlets distort information. (This section may contain opinion)

Top Spin Words

  • Frenzy

    The latest frenzy of activity from the White House followed Flynn’s guilty plea and agreement to cooperate with a sprawling criminal investigation … (The Guardian)

  • Fresh attack

    President Donald Trump launched a fresh attack Sunday on the credibility of his own FBI … (AP)

  • Lashes out

    Trump lashes out at own FBI in a series of tweets (AP)

  • Increasing legal peril

    Flynn’s decision to cooperate with Mueller was widely seen as a sign of increasing legal peril for other White House aides and perhaps Trump himself … (The Washington Post)

  • Tweetstorm

    ‘I never asked Comey to stop investigating Flynn’: Trump goes on tweetstorm about the FBI (The Washington Post)

  • More serious wrongdoing

    A central unanswered question is why Flynn lied to the FBI if there was not more serious wrongdoing that he was trying to cover up. (The Guardian)

  • Jeopardy

    Other comments made by Trump could also put him in jeopardy of obstruction charges. (The Guardian)

  • Reloads

    Trump reloads on FBI’s Clinton email probe, after reports of ‘tainted’ anti-Trump agent (Fox News)

Did President Donald Trump inadvertently confess to obstruction of justice in a single tweet? Given the difficulty of proving such a crime, the answer is probably not a straightforward, definitive, “Yes.” But AP, The Washington Post and The Guardian seem to suggest otherwise. (Why is Fox News not in this list? See the footnote.)

These articles suggest the tweet provided undeniable incriminating evidence of obstruction of justice. To be fair, there were some legal experts that more-or-less said as much and it’s possible Trump’s actions, statements and tweets could lead to an obstruction charge. Trump may have obstructed justice; we’ll leave that for the experts and justice system to decide. Yet the bias and generalizations in the media coverage misleadingly portray Trump’s tweet as a clear-cut case of obstruction of justice, thereby losing all the nuance that often accompanies legal matters like this.

Our ratings show evidence for the bias mentioned above. AP, The Guardian and The Post were 80, 79 and 75 percent slanted, respectively (the higher the rating, the more biased the article). Here’s how the articles slant and distort information.

1. Cherry-picking expert quotes

Cherry-picking is when you select evidence that suits your conclusion and you leave out information that may counter it. In this case, AP, The Post and The Guardian exclusively include expert opinions that seem to leave little doubt as to whether Trump has obstructed justice.

Here’s an example from The Guardian:

“That’s a confession of deliberate, corrupt obstruction of justice,” said Laurence Tribe, a professor in constitutional law at Harvard University.

All three articles contain different excerpts of this quote from Sen. Dianne Feinstein, a senior Democrat on the Senate Judiciary Committee:

“What we’re beginning to see is the putting together of a case of obstruction of justice. I think we see this in indictments … and some of the comments that are being made. I see it in the hyper-frenetic attitude of the White House, the comments every day, the continual tweets. And I see it most importantly in what happened with the firing of Director Comey, and it is my belief that that is directly because [Comey] did not agree to lift the cloud of the Russia investigation. That’s obstruction of justice.”

What might an alternative view look like? It doesn’t necessarily have to be the polar opposite of the above quotes. Sometimes an alternative view is one that offers a more nuanced perspective, like this one from Texas law professor Stephen Vladeck, cited by the Toronto Star:

“I don’t think the tweet, profoundly misguided though it may have been, is itself proof of obstruction of justice. But, it may very well establish the timeline of what Trump knew when, which would be a necessary part of any obstruction charge. So it’s not quite a smoking gun, but it certainly doesn’t do the president any favours.”

See the difference?

2. Vagueness and Generalizations

Here, the articles offer generalizations and vague assertions that suggest an obstruction charge is becoming increasingly likely, though few specifics are provided.

Here are two examples:

The Guardian (lead sentence)

“Donald Trump is increasingly vulnerable to charges of obstructing justice…according to legal experts and senior Democrats.”

How many experts and Democrats are we talking about? Just the ones quoted in the articles, or more? And what does “increasingly vulnerable” mean, exactly? Has the likelihood of an obstruction charge increased? By how much and how might this be measured? What was the likelihood before Trump’s tweets over the weekend?

The Washington Post

“Flynn’s decision to cooperate with Mueller was widely seen as a sign of increasing legal peril for other White House aides and perhaps Trump himself …”

“Widely seen as” suggests it’s generally accepted that Flynn’s cooperation with the investigation is a “sign of increasing legal peril” for Trump’s administration, and maybe Trump himself. Is this necessarily true? Do most people hold this view? Based on what information?

Even if it is a “widely” held view, due process doesn’t deal with people’s opinions of Trump’s legal standing. It deals with examining evidence and proving someone is guilty beyond a reasonable doubt, and otherwise presuming innocence.

Why does this matter?

In his book “A Field Guide to Lies, Critical Thinking in the Information Age,” Daniel J. Levitin says, “There are always alternative explanations; our job is to weigh them against the one(s) offered and determine whether the person drawing the conclusion has drawn the most obvious or likely one.” It’s pretty hard to do this when articles a) present mostly one explanation – Trump likely or definitely obstructed justice – and b) lack the information necessary to evaluate its likelihood, such as the legal criteria for deciding whether there has been an obstruction of justice (see Context for more information).

Presenting Trump’s tweets as a black-and-white case of obstruction of justice is more likely to promote partisanship and divisiveness than critical thinking. And considering an obstruction charge could lead to impeachment, wouldn’t it be responsible to promote critical thinking, no matter what side of the aisle you’re on? We think so.

But what’s ironic is how the bias and generalizations in AP, The Post and The Guardian potentially undermine the justice system itself – something Trump has been accused of doing. By suggesting Trump likely obstructed justice before Mueller’s investigation has concluded, the media effectively circumvents due process. Trump to date has not been charged or convicted. This may change but until there’s a guilty verdict, the justice system presumes innocence, a standard the media doesn’t always follow.

*Fox News put a different spin on Trump’s tweets about the FBI, one that cast Hillary Clinton in an unfavorable light. We didn’t discuss this in The Distortion as it was a different point, but the effect is still captured in our ratings – Fox News’ slant score was 73 percent, which means it had a high degree of bias.

Is it fact or fiction? Which outlet presents the most spin?

  • 46% Spun

  • 52% Spun

  • 54% Spun

  • 59% Spun

Fiction
or
Fact

The Washington Post

“He said he was not worried about what Flynn might share now that he is cooperating with prosecutors, forcefully asserting that there was “absolutely no collusion” between his campaign and Russia.

Reporters asked Trump if he was “worried” about what Flynn might say and Trump said, “No, I’m not. And what has been shown is no collusion, no collusion. There has been absolutely no collusion.”

The Guardian

“Moving to limit the potential damage, one of Trump’s attorneys, John Dowd, claimed he had written the tweet, which he described as ‘sloppy’.”

The Washington Post reported that Dowd drafted the tweet.

The Guardian

“A central unanswered question is why Flynn lied to the FBI if there was not more serious wrongdoing that he was trying to cover up.”

Flynn pled guilty to lying to the FBI on Friday.

The Guardian

“In a series of increasingly wild tweets on Sunday, Trump attacked the FBI and ABC News.”

Trump tweeted directly about the FBI three times and about ABC once, saying the FBI was “tainted” and in “Tatters” and said people should “su[e]” ABC.

Fact Comparison

  • Facts in only 1 source
  • Facts in 2 sources
  • Facts in 3 sources
  • Facts in all sources

On Sunday, President Trump tweeted about news reports on an FBI agent who opposed Trump, ABC News’ decision to suspend report Brian Ross for a story about Michael Flynn, Trump’s initial denial that he asked former FBI Director James Comey to halt the Flynn investigation and retweeted political commentator Paul Sperry’s calls for changes to the FBI. (The Washington Post)


Fox News, AP and The Guardian selectively reported some of Trump’s Sunday tweets while leaving out others. This cherry-picking of data can introduce bias into a story. The Washington Post is the only outlet to report on almost all of Trump’s tweets on Sunday – he also tweeted about the shooting of Kathryn Steinle, for example.

Headlines

An article’s headline can direct how the news is understood. Compare and contrast how different outlets present the story through their headlines.

There was enough spin in Trump’s tweets; AP didn’t need to add its own. Trump “criticizes FBI” would have been more neutral and have got the point across.

Do four direct tweets about the FBI and Comey in one day count as a “tweetstorm”?

The Numbers

See how the articles rate in spin, slant and logic when held against objective standards.

View Technical Sheet >

Context

Access information and historical data that provides a more comprehensive understanding of the story.

When covering the Russia investigation, media outlets often quote people claiming or suggesting President Trump obstructed justice, but they usually don’t provide the legal context necessary to evaluate these claims. Moreover, it may be particularly difficult to understand obstruction allegations, given that “obstruction of justice is not a black-and-white offense,” as University of Texas law professor Steve Vladeck puts it.

What follows is an introduction to obstruction of justice, an examination of whether a president can be prosecuted on an obstruction charge and an overview of some of the relevant laws.

What is “obstruction of justice?”

In general, obstruction of justice is an “impediment” of government activities. Several legal statutes prohibit people from influencing investigations through means such as tampering with witnesses, destroying evidence or interfering with jurors and court officials.

For a person to be convicted of obstructing justice under the 18 U.S.C. 1503 “omnibus provision,” the government must prove beyond a reasonable doubt 1) there was a pending official proceeding, 2) the accused knew of the proceeding, and 3) the accused had “corrupt” intent to interfere with the “due administration of justice.” To prove the latter, there must be a “relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice.”

Can a sitting president be prosecuted for obstructing justice?

Obstruction charges against a sitting president may be handled differently than those against a private citizen. A 2000 memorandum by the U.S. Department of Justice concluded that “all federal civil officers except the president are subject to indictment and criminal prosecution while still in office.” However, the Intercept notes that no U.S. court has ever ruled on whether such charges can or cannot be brought against a sitting president.

In place of criminal prosecution, the president may be impeached by Congress. Article 2, section 4 of the U.S. Constitution says, “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

What are U.S. obstruction laws?

According to an overview of obstruction of justice statutes compiled for Congress by the Congressional Research Service, six of the most general obstruction laws are:

18 U.S.C. 1503 – Influencing or injuring an officer or juror: “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 punished.” The punishment may include a fine, up to 10 years in prison, or both.

18 U.S.C. 1512 – Witness tampering: “Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so … with intent to influence, delay, or prevent the testimony of any person in an official proceeding” or “cause … any person to withhold testimony … alter, destroy, mutilate, or conceal” information or “evade legal process summoning that person to appear as a witness,” among other conditions, “shall be fined under this title or imprisoned not more than 20 years, or both.”

18 U.S.C. 1513 – Witness retaliation: “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.”

18 U.S.C. 1505 – Obstructing Congressional or Administrative Proceedings: “Whoever, with intent to avoid, evade, prevent, or obstruct compliance … with any civil investigative demand … willfully withholds, misrepresents, removes from any place, conceals … or by other means falsifies any documentary material,” among other provisions, “shall be fined under this title, imprisoned not more than 5 years.”

18 U.S.C. 371 – Conspiracy to commit an offense or defraud the U.S.: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

18 U.S.C. 401 – Contempt of court: “A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as (1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) misbehavior of any of its officers in their official transactions; (3) disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”