Legal experts say President Trump’s dictation of a misleading statement from his son about a meeting with Russians is not obstruction of justice but could get the president in hot water anyway.
Noting that the statement was provided to the New York Times, John Q. Barrett, professor at St. John’s University School of Law and former Justice Department attorney, said that it is not a crime to lie to reporters.
“Putting out a press release that says ‘I just got elected to the Baseball Hall of Fame’ or whatever else that isn’t true is just talking,” he said. “Even lying, but to the public, is not a criminal offense. So the obstruction statutes don’t reach that.”
That doesn’t mean a misleading public statement could never cause trouble, experts said, but it would likely involve other factors that haven’t yet been shown in this case, such as an attempt to coerce a witness into making a false statement in an official proceeding.
That said, Barrett and others said the statement would draw the attention of special counsel Robert Mueller, who would be even more likely to probe the June 2016 meeting at Trump Tower.
“There has been so much activity that suggests a basis for a cover-up that the evidence or the assertions, let’s say the leads, continue to accumulate,” says Richard Ben-Veniste, a Washington lawyer who was a special prosecutor during Watergate, “providing a roadmap for an investigator, in this case an excellent investigator in Mr. Mueller, to follow up on.”
And that could eventually lead to problems if misleading statements were made to investigators, added Alexander Tsesis, professor at Loyola University, Chicago, School of Law.
“If the same letter was sent to a body that is investigating in an official proceeding, like the Senate or FBI, under those circumstances it would be obstruction,” he said.
Legal observers have been debating obstruction of justice laws since Trump fired FBI Director James Comey.
The federal obstruction of justice statute 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).”
“Corruptly” is a crucial word in the clause, and means that prosecutors would need to prove Trump had intent to obstruct. “That’s the key,” says Jed Shugerman, professor at Fordham University School of Law. “There’s a growing mountain of evidence of corrupt intent.”
That’s where this incident could come into play— even though dictating the misleading statement wasn’t illegal, prosecutors could use it as evidence to show that Trump wanted to minimize the significance of his team’s Russian contacts. In other words, this action itself may not constitute obstruction of justice, but it could be used as supporting evidence.
“Obstruction cases are rarely one moment, standalone endeavors,” says Barrett. “They’re usually more in the nature of a course of conduct and multiple actors… In a vast landscape like that, this could be a particular that’s part of a criminal charge.”
While there doesn’t appear to be much of a legal case here, experts said there’s certainly a political argument against making a misleading public statement.
“The last thing you would want to do is put the president at the center of that strategy to release those documents and explain them to reporters,” says Andrew Wright, associate professor at Savannah Law School. “It’s White House 101 that you keep this stuff as far away from the president as possible.”
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Write to Tessa Berenson at tessa.Rogers@time.com