Hoping to Misrepresent Cases

There is a lot of misrepresentation going on these days. I don’t often feel the need to write about it, mostly because it would be a never-ending chore. But this one strikes me as so blatant it should be addressed somewhere.

It concerns claims as to whether or not “expressing hope” can be called obstruction of justice. Over at takecareblog.com (hereafter referred to as TCB) they claim that the courts have done so. But have they? Let us look at what TCB claims means the courts did.

But first, let us look at their own claim:

We must confess, though, to being puzzled why this analysis was even necessary. Anyone familiar with human interaction knows that it is eminently possible to express a command or a threat using the phrase “I hope.” (“I hope you don’t forget our anniversary next week.” “I hope you can get this memo on my desk by tomorrow morning.” “I hope no one burns your store down because you haven’t paid for ‘insurance.’”)

The first two are clearly not threats or commands. In order to change even that last one to a threat you require a lot more than the words. You need context such as tone, surrounding statements, etc.. Interpreting the third as a threat is somewhat credible, but the first two represent more about the person interpreting them that way than the phrases themselves.

But let us move on to the claims that courts have convicted people for “expressing hope” as the article claims. Let us examine their first claim.

In United States v. McDonald (8th Cir. 2008), the defendant pled guilty to robbing a bank. He was then sentenced under a provision of the United States Sentencing Guidelines (3C1.1) that directs a higher sentence for defendants who obstruct justice or attempt to do so. Two pieces of evidence supported the conclusion that the defendant had obstructed justice — a note the defendant had written, and a letter that stated “I hope and pray to God you did not say anything about a weapon when you were in Iowa. Because it will make it worse on me and you even if they promised not to prosecute you.”

I added the emphasis, because that is the part that matters. The bolded sentence is the threat, not the “I hope and pray” one. But the error on the author’s part doesn’t stop there. What about the note referenced? It made a direct threat. Indeed, the victim testified that he did so. From the actual case:

“Callahan’s testimony that, when she visited McDonald while he was incarcerated, he showed her a note urging her not to say anything about the knife”

To jump to the conclusion that Callahan was thus convicted because he said “I hope...” is ludicrous, and possibly willfully ignorant. The authors linked right to the text of the judgement which clearly stated the above reasons, so at least one of them reasonably is aware of them. Yet the actual threats were ignored in order to support a claim that “I hope” is enough to be considered a threat.

So how about their next “example”?

[One defendant] commented to Mr. Madison that someone in the house was dying and that Madison would die next. Grayson added, “I hope you have got insurance.”

Where is the threat in there? Clearly “that Madison would die next”. Telling someone that someone else is in the house is dying and that they are next is the threat, not “I hope you have got insurance”. Again, the authors ignore the literal threat and instead claim “I hope” is the reason for the conviction.

Their next example is even worse.

In United States v. Bedoy (5th Cir. 2016), the defendant was convicted of attempting to obstruct an official proceeding and the administration of justice. Some of the evidence, again, was a statement about what the defendant hoped would occur:

He then stated, “I[‘m] just hoping you haven’t told anyone anything…. Like, ya know, talking or anything like that.”

Based on experience from the first two, I went to the linked court document. Here is what it says on the obstruction charge:

Around July 8 and 9, Bedoy made the statements that formed the basis for Count One, which charged Bedoy with attempting to obstruct an official proceeding in violation of 18 U.S.C. § 1512(c)(2) by telling Sysy to move and not to give her real name if stopped by the police.

Notice there isn’t even a threat. It is a directive to obstruct the investigation by essentially sneaking away. it was made by an officer of the law, who would know or be expected to know that it was illegal to make such instructions. Hence, obstruction charges were fully warranted. That covers count one. The second count was again due to direct instructions to not let police in, not give her real name, not disclose anything — even if pulled over while driving without a license. Indeed, the only reference to the quote the aithors used is in using it to support the substantiation of intent to impede.

The argument made in the decision was that this supports the establishment of him having knowledge of the investigation and his role in what is being investigated. At no point did the court say anything about it being a threat or intimidation or construed as such. Again the authors have omitted the facts to support their desired outcome.

Their next case doesn’t fare well for them either. Once again they leave out the part where the defendant provided instruction on how to impede the investigation. In this one they are particularly egregious in that they leave out this fact and imply that the statement they quotes was the letter. Not even writing “…a letter which, in part, read …”. Perhaps they assume by now that you aren’t paying attention. That could explain their final claim of conviction based on expressing hope.

In their final case:

Finally, in United States v. Peterson (2nd Cir. 2004), the defendants were convicted of conspiring to distribute heroin. And they, too, were sentenced under the obstruction-of-justice provision. The evidence that supported the enhancement included a letter to a potential witness. The letter said, in relevant part:

“I hope Roland [Onaghinor] don’t think you told all them lies on him, that he read in those court papers and get scared and cop-out thinking they going to railroad him.”

We will stop there, though there are further rabbit holes we could go down.

Here, again, they ignore the actual text of the decision they link to. They then exacerbate this by claiming that the quote they pulled was the “relevant part”. Yet, this is not what the decison text states. Let us see what the actual decision states.

“Judge Larimer did not analyze the four letters separately and did not specifically state which of the letters provided the justification for a two-level enhancement. Instead, he concluded generally that the letters as a group provided evidence of an attempt to obstruct justice. ” U.S. v. Peterson, 385 F.3d 127, 140 (2d Cir. 2004)

Ok, so the original conviction was not predicated on a separate analysis of each letter. Thus, immediately we know that the conviction of obstruction was not based on the quote the authors provide. But the appeals court did not stop there. That court did analyze the letters. In these letters the perpetrator clearly instructed the recipient on what to say when interrogated. The perpetrator even went so far as to provide what he had said in order to sync up their false stories. This alone warrants the obstruction escalation.

Indeed, the court even stated:

“Williams’s December 5, 2001 letter to Sabrina Peterson must be viewed in context. It is not clear from the text that Williams was suggesting that Ms. Peterson lie or otherwise obstruct the investigation. ” U.S. v. Peterson, 385 F.3d 127, 141 (2d Cir. 2004)

There is absolutely no support for the quote provided being taken as any form of threat. Indeed the cited documents state with regards to the letters:

On their face they were simply advising Ms. Peterson of her right to remain silent and the danger of speaking with other inmates. But when Williams wrote these letters, he was the subject of a criminal investigation and had already been indicted. Thus, “here we have something more than `mere’ advice.”

The court did not conclude the perpetrator had threatened the recipient in any fashion. Indeed when you look at the quote the authors used in its context, it is clearly not a threat. The author was expressing that “Roland”, who is critically not the recipient, doesn’t think the other conspirators rolled over on him. There is no rational way to construe that statement as a threat or intimidation attempt on the recipient. The author clearly was expressing a hope that one of the other conspirators doesn’t think the rest of them have scapegoated him.

The conclusion of the court in this decision further destroys the claim that the conviction was based on “expressing hope” when it then says:

The correct view . . . is:

. . . [W]hile a witness violates no law by claiming the Fifth Amendment privilege against self-incrimination in a grand jury, one who bribes, threatens, coerces a witness to claim it or advises with corrupt motive a witness to take it, can and does obstruct or influence the administration of justice.

U.S. v. Peterson, 385 F.3d 127, 142 (2d Cir. 2004)

Essentially, the perpetrator was asking people to invoke their fifth amendment right against self-incrimination. But because the motive was to avoid or impede an investigation into the perpetrator, it becomes obstruction. No threats were made, and the court didn’t claim any threats were made.

Thus this one is perhaps the most egregious of the author’s misrepresentations. And I’m pretty sure they know it. They express the following:

Another potential objection is that in many of the cases we cite, there was other evidence of obstruction or threats that helped demonstrate that the defendants really did have the forbidden intent to obstruct justice.

Here they downplay what they have done. It isn’t “many” it is every single one. It isn’t merely “there was other evidence”, but that the other evidence is clear and conclusive on its own, and in the last two cases certainly the quotes they use had absolutely no bearing on the case. They only appear in the original documents as part of the inclusion of the entirety, such as printing the entire letter where the perpetrator explicitly instructs the recipient on how to impede the investigation.

At best, this is a case of the authors seeing what they want to see while ignoring the plain text of the decisions. But, if we look at their own article we can see this is not merely the case. If they hadn’t linked right to the cases (good for them to do), they could claim plausibly they were not aware of the full text. But they clearly had knowledge and access, thus are aware. They also admitted that there was other evidence (mostly). But they dismiss the clear and plain evidence in order to support a ludicrous claim that saying “I hope…” constitutes obstruction of justice.

They claim that saying “I hope …” constitutes an implied threat. But the text of what Comey himself says was stated does not support it being one. Comey also does not say he felt threatened. He says he took it as a request, but that is all. But then again, if you’re the type of person who will construe “I hope this other person doesn’t think we are railroading them” into a threat I suppose you’re going to always think that such things are somehow magically implicit.

A conviction for obstruction of justice requires the government to prove to a jury beyond a reasonable doubt that a defendant obstructed, influenced, or impeded an investigation.

This is actually false. The conditions require it be willfully, and intentionally known to be a corruptive act by the perpetrator.

The authors also make the following assertion:

When a boss expresses a “hope” that something would occur, and the employee has the power and authority to make that something occur, that reads like an order.

Well if that is what they believe, I hope their boss has no hopes for them. Besides, if we read such statements as they do, perhaps they are threatening a congressmen when they conclude with:

Whether Senator Risch will pay any attention, we don’t know. But we can hope.

But all hope and fun aside, it is a clear indication, when you’re focusing on whether you can construe a singular expression of desire by parsing hope into “do this or you’re fired”, that you don’t have an actual case. In every single case cited, there was clear and incontrovertible evidence to support obstruction of justice charges and convictions, and the “expression of hope” had nothing to do with the decision.

And did you notice what is conspicuously missing in all of these cited cases? First, a case where “expressing hope” was the reason for conviction, which was the argument the article claimed was being made. In no case cited was the expression of hope listed as the justification by the judges. Second, what is missing in these cases is one where the defendant was not the one under investigation. With regards to the Flynn case, the POTUS was not the subject of investigation. In every single cited case the person convicted with obstruction was one of the subjects under investigation, and convicted because they explicitly instructed the other persons on how to impede the investigation.

There is no evidence of such activity here, regardless of the authors’ hopes. Comey’s own testimony counters the authors’ claims that there was an implied threat he would be fired for not dropping the Flynn investigation. he had been explicitly assured he was not at risk of losing his job.

Comey testified that:

They confused me because the president and I had had multiple conversations about my job, both before and after he took office. And he had repeatedly told me I was doing a great job and he hoped I would stay.

That is not what Comey would be saying if he suspected any implied threat of firing. From Comey we do know that Trump did make a specific request for action.

The ask was to get it out that I, the president, am not personally under investigation.

That is what was actually requested. Personally, I think his refusal to do that is why Trump fired him. I think Comey does as well. Consider this excerpt from his testimony:

RUBIO: Thank you.

Director Comey, the meeting in the Oval Office where he made the request about Mike Flynn — was that the only time he asked you to hopefully let it go?

COMEY: Yes.

RUBIO: And in that meeting, as you understood it, that was — he was asking not about the general Russia investigation, he was asking very specifically about the jeopardy that Flynn was in himself?

COMEY: That’s how I understood it, yes, sir.

RUBIO: And as you perceived it, while it was a request that — he hoped you did away with it, you perceived it as an order, given his position, the setting and the like, and some of the circumstances?

COMEY: Yes.

So even Comey knew Trump was explicitly hoping that the Flynn thing be dropped, not the “general Russia investigation”. He also testified that “the cloud” was whether Trump was under investigation — a claim which Comey knew at the time to be false.

But critical to understanding Comey here is to read/hear his continued testimony how his concern with making such a statement was with regards to his assertion that to do so would obligate him to make a correction should that ever change. He has some unpleasant experience with this. And, in fact, he did make the statement — once he was no longer under an obligation (self-imposed or otherwise) to correct it if things changed.

Even further, Comey testified that Trump had directly expressed a desire to find out if any of his “satellites” (what the rest of us would usually call “associates”) did have any issues.

Comey even testified that he thought the request to get out the fact that Trump was not under investigation entirely reasonable. So if we look at Comey’s testimony, nothing appears to rise to a level of obstruction of justice charge. If we take, as the judges in the cited cases did, everything in aggregate, there is nothing — from what we have publically — that amounts to obstruction. There was no investigation of Trump for him to interfere with.

Even if he said “I want you to drop the Flynn investigation”, there was no threat stated or implied. Indeed, Trump was actually asking, according to Comey, for some investigation into the “dossier”, but Comey recommended against it. Comey thought Trump’s request to say they were not investigating him to be “reasonable”, and not an illegal act — an act he did anyway. Trump expressed to Comey that he should continue investigating the general issue, especially if his associates were involved. Trump only brought up Flynn’s investigation, according to Comey, that one time.

I find Comey’s behavior and testimony to be thoroughly consistent, notinly internally but with regards to the past year or so. He stated the only thinks his handling of “the Russia investigation” was factor not because of implied threats or requests, but because of Trump’s literal public statements to that effect. But he does not say or imply it had anything to do with Flynn, and his testimony supports that it was most likely his refusal to say Trump was not actually being investigated by the FBI. That does not constitute obstruction of justice in any way, shape, or form.