Conroe, May 9 – 284th District Judge Kristen Bays spoke to the Montgomery County Tea Party in Conroe on Monday night about the Mueller Report and specifically the reason United States Attorney General William Barr is spot on in his analysis that President Donald Trump could not have committed obstruction of justice under 18 U.S.C. Section 1512. Bays delivered a brilliant elocution of the obstruction of justice issue and provided the audience with the tools to engage in their own analysis about the matter.
Although Judge Bays left to the audience the tools to analyze whether President Trump could have violated the federal obstruction of justice statute, she made clear her belief that the President’s conduct could not possibly even come close to violation of the law. Special Counsel Mueller found there was no collusion between the Trump Campaign and Russia, so there could be no crime President Trump sought to conceal. Furthermore, there was no official proceeding pending at the time President Trump took actions such as the very appropriate termination of attention-seeking James Comey as Director of the Federal Bureau of Investigaiton. Even furthermore, as Judge Bays explained, the President is the Executive Branch of Government and, as such, he had every legal right to terminate subordinate federal officers within his policymaking discretion as President of the United States.
The obstruction of justice statute, on which, Bays explained, Mueller had focused in his Report, is 18 U.S.C. Section 1512(c)(2), which reads:
“(c) Whoever corruptly-
“(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Bays said President Trump could not have “corruptly” taken any action, because, as President, he has the right to remove subordinate federal officers. Of course, there was no “official proceeding” with which President Trump could have “obstructed,” “impeded,” or “influenced,” because there was no pending proceeding, only an investigation.
The District Judge explained that, in the 484 page Mueller Report, Special Counsel Mueller tried to argue that, when President Trump fired Comey, there was “substantial evidence of obstruction of justice.” Of course, Mueller didn’t go so far as to find that obstruction of justice actually occurred.
Prior to becoming Attorney General of the United States, William Barr, who was a partner at the law firm of Kirkland & Ellis in Washington, D.C., at the time, wrote a legal memorandum on June 8, 2018, in which Barr noted that Mueller read the obstruction of justice statute far too broadly.
Bays provided the rules for construction of statutes with which she must deal every day in her work as the 284th District Judge:
- We must look at intent.
- We must use the plain meaning of words in a statute and presume Congress chose the words in the statute deliberately, unless they defined terms in a unique manner.
- We must follow the rule that a specific list defines a general catchall phrase which follows and exemplifies the intent of the general phrase.
- We must construe criminal statutes very strictly and limit their application as much as possible.
Mueller’s broad interpretation of Section 1512 required him to define the term “corruptly” as “serving oneself.” Barr, on the other hand, in his legal memorandum made clear that corruption only occurs when one actually takes actions which are corrupt, such as physically destroying evidence or murdering a witness. Judge Bays explained that Congress’ intent with Section 1512 was specifically to prevent companies such as Enron from destroying evidence during a pending criminal proceeding.
Bays said, “The President has unreviewable discretion to make choices about policy and hiring of people under the Constitution. He can take those actions without being corrupt. But according to Mueller, that’s obstruction of justice…made clear in his writing that the President, as Chief Executive, has absolute discretion to stop an investigation under the Constitution.”
Bays distinguished President Trump’s conduct from that of former President Richard Nixon who allegedly destroyed evidence in the form of the White House tapes during pending criminal investigations into several White House officials. Clearly, Bays explained, such conduct would have been against the law.
Judge Bays was critical of Mueller’s interpretation of Section 1512 and agreed with General Barr’s conclusion that, if 18 U.S.C. Section 1512(c) were as broad as Mueller believes, the rest of the obstruction of justice statute “would be unnecessary.” Section 1512 details many specific actions, such as murder or witness intimidation, in which a person may not engage.
“A mindset can’t define a wrongful act as the mindset,” Judge Bays explained.
Judge Bays also noted that General Barr has argued, “How can you obstruct justice if there is no crime?”
The Judge, who took the oath of office on January 1, 2019, in Conroe, clearly is a “Constitutional conservative.” She noted that the Montgomery County Tea Party includes many of the conservative activists who opposed the Conroe Independent School District’s $807 million bond, which failed in a voter referendum on May 4. “This group made your position clear to the citizenry. They weren’t able to stop you from speaking or exercising your First Amendment rights.”
Sadly, Conroe ISD Superintendent Curtis Null sought to stop opponents of the $807 million bond and tax hike from expressing their views. Null refused to attend any discussion about the bond where any person with a viewpoint other than his own could speak.
Judge Bays also reported to the audience that her Court is “operating at 112.59%,” meaning the new District Judge is disposing of substantially more cases than the number of new cases which are coming into her Court through new filings.
“I’ve presided over 12 jury trials and 171 bench trials since January 1. I’ve also disposed of 814 other cases. I’ve been working with my nose to the grindstone. My job is such a pleasure. I really love it,” Bays said. The District Judge thanked her “wonderful staff” for their hard work as well.
“One of my secrets is that I work hard and I give rulings,” Judge Bays concluded. She doesn’t allow cases to languish without judicial rulings.