There’s a huge difference between pursuing obstruction of justice as an additional charge to a crime or making obstruction of justice into the crime. The latter is an admission that there was no crime to begin with. Pursuing process crimes that were generated by the investigation is the “resisting arrest” of white collar crimes. It’s one thing to tack obstruction of justice on to a crime, but when there is no crime except the one created by the investigation that reeks of abusive and corrupt practices.

It’s an admission that there’s no crime. Under those conditions, a naked process crime looks a lot like either a witch hunt or prosecutors trying to justify a wild goose chase.

It’s bitterly telling that Biden’s DOJ after all the noise about nuclear secrets is converging on obstruction of justice. As many of the legal experts have pointed, obstruction of justice is an easier case to make. Most process charges are easy to make because interactions with law enforcement and various authorities are shaped to make them so. Much as everyone is in violating of some federal law every day, close interaction with federal investigators all but ensures that a process crime can be generated.

Just ask General Flynn.

It would be one thing if the DOJ were pursuing obstruction of justice charges after investigating and failing to make any other case. That would be bad enough. But what’s shockingly worse is that after the Mar-a-Lago raid, obstruction of justice is first out of the gate. That is an admission that not only was there never a crime, but that Biden’s DOJ knew that there wasn’t one and isn’t going to bother wasting years chasing that cat up a tree. The level of bad faith here is on a banana republic level. 

Martha Stewart was hit with obstruction of justice charges after an extended investigation. The case was groundless and it was another example of federal prosecutors going after celebrities to get famous. (The Varsity Blues college admissions case was a much more recent and dirtier example.) There’s not much of an investigation here. The DOJ was always going to do obstruction of justice. The Mar-a-Lago raid was not about recovering documents, or nuclear secrets, but crossing a ‘T’ in a case that was already pre-made.