Did President Trump obstruct justice? On May 9, 2017, the President fired FBI Director James Comey. This unexpected move immediately raised questions about the President’s motives. Critics charged that Trump was seeking to derail the FBI investigation into possible Russian ties to the Trump campaign.
Then, a week after Comey was sacked, substantial fuel was added to the obstruction fire. The New York Times reported that in a private meeting in February President Trump asked Comey to drop the investigation of former National Security Advisor Michael Flynn. Comey apparently prepared a memo memorializing this meeting. Comey wrote that Trump told him Flynn was a “good guy” who didn’t do anything wrong, and said , “I hope you can see your way clear to letting this go, to letting Flynn go.”
Additional news continues to trickle out. On May 19 the New York Times reported that in a meeting in the Oval Office with Russian officials the President told them, “I just fired the head of the F.B.I. He was crazy, a real nut job.” Trump also reportedly told the Russian officials, “I faced great pressure because of Russia. That’s taken off.”
Then on May 22, the Washington Post reported that Trump had asked the director of national intelligence and the director of the National Security Agency to publicly deny there was any evidence of collusion between Russian officials and the Trump campaign. Both refused to do so because they felt the request was inappropriate. Later in the same story, the Post reported that senior White House officials also had approached top intelligence officials to ask whether it was possible to ask Comey to shut down the FBI investigation.
“Obstruction of justice” is a term that gets tossed around fairly loosely. The op-ed pages and Twitter have been pronouncing Trump guilty for days. But the crime of obstruction of justice has specific requirements that can be difficult to prove. A federal prosecutor analyzing this as a criminal case would face some hurdles, although the case grows stronger with each new revelation. But in the end, political remedies — including potential impeachment — are more likely than criminal ones.
The Criminal Obstruction Statutes
Several different criminal statutes prohibit obstruction of justice. There are other options, but if I were considering this case I would focus on 18 U.S.C. § 1512(c)(2). This catch-all provision applies to anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” The maximum penalty is twenty years in prison.
Obstruction is a crime independent of the merits of any underlying case. Even if an investigation doesn’t result in criminal charges, you can get in trouble for obstructing that investigation – just ask Scooter Libby or Martha Stewart. As the old saying goes, sometimes the cover-up is worse than the crime.
The statute applies to attempts to obstruct a proceeding even if they are unsuccessful. If the investigation into Russian ties continued unimpeded, that would not be a defense to any attempted obstruction.
What Is the Relevant Proceeding?
In any obstruction case, the first task is to identify the proceeding the defendant was allegedly trying to obstruct. There is no such thing as “obstruction in the air.” The government must prove the defendant had a particular proceeding in mind, even if that proceeding had not yet begun. (The prosecution’s failure to prove the link to a specific proceeding is what led the judge in the Bob and Maureen McDonnell case to throw out her obstruction conviction.)
Under § 1512 a proceeding may be a matter before any of the three branches of the federal government. A trial or other court proceeding, a Congressional investigation, or a proceeding before a federal agency all may qualify.
You generally can’t be charged with obstructing an FBI investigation itself, because an investigation is not a “proceeding.” A different obstruction statute, 18 U.S.C. § 1519, could apply if Trump destroyed documents or records (or Oval Office tape recordings?) to impede the FBI investigation. But firing Comey or urging him to drop the case would not fall within that prohibition.
Removing the FBI director might have some tangential effect on the ongoing Congressional investigations, which qualify as proceedings. But the most likely theory would be that Trump, by urging Comey to drop the investigation and then firing him when that didn’t happen, was attempting to impede the pending grand jury investigation into possible Russian connections to his campaign.
There were recent news reports that a federal grand jury has issued subpoenas for records related to Michael Flynn. There appears to be an active grand jury investigation, and there is probably little doubt the President is aware of it. A grand jury investigation is a “proceeding” for purposes of 1512.
This is a link made in many obstruction cases. The FBI investigates, but it can’t file charges and prosecute on its own. In a criminal case the FBI typically is working with federal prosecutors conducting a grand jury investigation. Often when people speak of obstructing an FBI investigation, what they really mean is obstructing the underlying grand jury proceeding in which the FBI is involved.
Prosecutors could charge that Trump sought to impede the grand jury investigation by persuading Comey to drop the case and, when that failed, by firing him. The government would bear the burden of proving Trump had the grand jury investigation in mind when he took those actions.
Did President Trump Obstruct Justice?
As in so many white collar cases, the critical issue would be proving intent. Corrupt intent is the key to obstruction of justice. It means the defendant acted with the deliberate and dishonest purpose of interfering with the proceeding. In other words, wrongfully obstructing the proceeding is what he set out to do. It isn’t enough if the proceeding is affected as a collateral or unintended consequence of the defendant’s actions.
How would a prosecutor prove the President’s intent? One remarkable aspect of this case is the significance of the President’s own statements. During his recent interview with Lester Holt of NBC news, the President admitted he was thinking about the “Russia thing,” which he called a “made up story,” when he decided to fire Comey. This admission could get prosecutors over what is sometimes a significant hurdle: proving the defendant at least had the relevant proceeding in mind.
The day after firing Comey, the President reportedly told Russian officials that he had faced “pressure” over Russia and that firing Comey had removed that pressure. The defense would dispute exactly what the President meant by this, but at a minimum it is further evidence that Comey’s firing was linked in the President’s mind to the Russia investigation.
Building a Circumstantial Case
Prosecutors often prove corrupt intent by circumstantial evidence. In this case, there is no shortage of it. First, the timing of Comey’s firing is suspicious. Most of the misdeeds for which he allegedly was fired have been known for months. But the President chose to remove him only when the Russia investigation was reportedly heating up.
Reasons for the firing also seem suspect. The White House claims Comey was fired over his handling of the Hillary Clinton email scandal. But as many have noted, the President previously praised Comey for those same actions, often while his crowds chanted, “Lock her up!” The claim the President fired Comey now for actions he took six months ago is perhaps implausible. But the notion that this President fired Comey because Comey was unfair to Hillary Clinton is laughable.
The White House also claimed the firing was necessary because Comey had lost the support and confidence of the rank and file members of the FBI. This was flatly contradicted by the now-acting director and Comey’s former chief deputy, Andrew McCabe, in testimony before the Senate Intelligence committee.
Then there is the shifting narrative about how the decision was made. The White House originally claimed the President acted based on a recommendation from newly-appointed Deputy Attorney General Rod Rosenstein. When Rosenstein apparently objected (and perhaps threatened to resign), the President began saying he had decided to fire Comey on his own, prior to any recommendation.
Conflicting, shifting, and apparently untrue explanations for the President’s actions could provide compelling circumstantial evidence of corrupt intent. Often such evidence suggests the truth is something more sinister that the defendant wants to conceal.
The news that Trump asked Comey to drop the investigation provides significant additional circumstantial evidence of corrupt intent. The narrative then becomes that Trump first urged Comey to back off, and when that failed, he fired him. Reports that Trump asked others to leave the meeting before he spoke to Comey further suggest he knew he was doing something improper.
This theory is bolstered by the reports that senior White House officials had asked intelligence officials about intervening with Comey to see if they could ask him to shut down the Russia investigation. If those reports could be substantiated they would provide further evidence that the purpose of firing Comey was not to remove an ineffective leader or help the FBI but to thwart the Russia investigation.
The Defense: Lack of Corrupt Intent
Despite all of the above, this would not be a slam-dunk prosecution. When I first wrote this post after Comey was fired, I thought a potential criminal case would be very challenging. The news that has come out since then — including the Holt interview, the Oval Office meeting with the Russians, and the White House inquiries about possibly asking Comey to shut down the investigation — has made the case considerably stronger.
Proving to a unanimous jury beyond a reasonable doubt that the President acted with corrupt intent would still be challenging. If the information in all the press reports could be verified and translated into admissible evidence, I think a prosecutor could build a pretty decent case. But the defense would have a lot to work with as well.
First there’s the fact that the President clearly has the right to fire the FBI director. Comey himself, in his letter to FBI personnel following his dismissal, noted his belief that the President could fire him at any time and for any reason. That’s not an ironclad defense, of course. If something you have the right to do is done for a corrupt purpose it can still be obstruction. But prosecutors could not raise an inference of corrupt intent based solely on the nature of the President’s actions.
In addition, as the President has already pointed out, many people, both Democrats and Republicans, believed there were good grounds to fire Comey based on his actions over the past year. This would help raise a reasonable doubt about corrupt intent.
The President’s defense also would claim that his actions were too remote from the Russia investigation to constitute obstruction. The Supreme Court has held that acts are not obstruction unless they would have the “natural and probable effect” of influencing the proceeding if successful. In an institution as large as the FBI, removing the director may be unlikely to derail any one investigation. Indeed, acting director McCabe assured Congress this was the case and that the investigation will proceed unimpeded.
The Significance of Trump’s Own Statements
Some commentators have claimed the President basically admitted to obstruction by telling Lester Holt the “Russia thing” was on his mind when he fired Comey. This is an overreach. Saying the President was thinking in part about the Russia investigation is not at all the same as saying he acted with the corrupt intent to obstruct that investigation.
This is a fine distinction, but a critical one. The President could fire Comey because he was mad about Comey’s handling of the Russia investigation and still not intend to obstruct that investigation. If the President believed (probably correctly) the investigation would continue unimpeded without Comey, he would lack the requisite intent to obstruct. Even if he was just mad at Comey and didn’t think at all about the effect on the investigation, that too would mean he lacked corrupt intent.
Later in the same NBC interview Trump also said he wanted the investigation to be done properly. Trump could argue that because Comey had become ineffective as a leader, firing him actually made it more likely the investigation would be successful.
Trump’s statements to the Russian officials about relieving “pressure” by firing Comey are also open to more than one interpretation. Based on the White House statements following the story, it appears Trump would argue that Comey’s mishandling of the investigation was disrupting the President’s attempts to forge better diplomatic relations with the Russians. When he referred to relieving pressure, the defense would argue, the President was referring to this interference with his diplomacy, not to the criminal investigation.
Some of these alternative explanations may seem implausible. I can see eyes rolling from here. But remember the President would not need to prove he acted without corrupt intent. The burden of proof always rests with the government. The defense would only need to raise a reasonable doubt about the President’s intent.
Every prosecutor has had the experience of having what seemed like a stone cold admission by a defendant be completely undermined by a plausible alternative explanation. I’m not trying to bend over backwards to provide excuses for the President’s statements. I’m simply acknowledging the difficulties that prosecutors can face when trying to prove guilt based on statements and circumstances that may be open to different interpretations.
Trump’s Alleged Request to Drop the Investigation
The new reports that President Trump asked Comey to drop the Flynn investigation provide significant additional evidence of possible obstruction of justice. But there are still some unresolved questions. First, the White House has denied Comey’s claims. Unless the rumored Oval Office tapes show up, the details of the meeting would be contested. Comey’s contemporaneous notes would carry significant weight, but disputes about the details and precisely what Trump said and how he said it could be important.
The President is the head of the Executive Branch and was Comey’s boss. How does that affect the question of corrupt intent? On some level the President does have the right to tell the FBI director what to do, just as he has the right to fire him.
There are long-standing norms and traditions about Justice Department independence and the White House not interfering in DOJ investigations. Trump’s alleged conversation with Comey seems to have trampled all over those norms. But whether breaching those norms amounts to a crime is a different question.
Trump’s meeting with Comey is the incident that so far sounds the most like true obstruction. But it may depend on further information about Trump’s own involvement in any underlying misconduct. If it turns out Trump wanted the Flynn case dropped because he feared it would lead to him, that sounds like corrupt intent. But if Trump was not implicated and was simply genuinely concerned that his friend was being treated unfairly, that could suggest the conversation was perhaps improper and unwise but not criminal.
In response to reports about the meeting with Comey, the White House responded by saying essentially “this is just the way the President talks.” In other words, it was an offhand remark expressing his concern about Flynn, not a calculated effort to influence Comey. This is a version of a defense of lack of corrupt intent, and it may be perfectly plausible. The President simply may not have appreciated the impact such an offhand statement could have when it comes from the leader of the free world and the FBI director’s boss.
In situations such as the Comey meeting a great deal also depends on things like nuance, tone, and body language. Was the statement made in a menacing way or in an offhand way? How did Comey interpret it? Information like that does not come across in a memo to the file and would depend on Comey’s testimony about the meeting.
There’s Obstruction, and then There’s Obstruction
In a criminal investigation of possible obstruction a grand jury could subpoena additional witnesses and documents. Perhaps prosecutors could develop stronger evidence of corrupt intent. The case would depend not on any one incident in isolation but on the pattern of the President’s actions. The circumstantial evidence is mounting, but a lot would need to be done to shore up that evidence. Prosecutors would need to establish that some of the things reported in the press actually took place and could be proven at trial.
The reality is that a criminal prosecution of President Trump is unlikely. Although it’s never been officially settled, most authorities – including the DOJ — believe the Constitution prohibits the prosecution of a sitting President. The scene where Trump is handcuffed and perp-walked out of the Oval Office is not going to happen.
But I think when most people accuse Trump of “obstructing justice,” they are not focused on the elements of a specific criminal statute. Through a series of actions (including the events discussed above, a request that Comey pledge his loyalty, asking Comey whether he was under investigation, and his subsequent Tweet about Comey that many interpreted as a threat) Trump appears to have violated fundamental constitutional and political norms concerning the rule of law and limitations on executive power. Trump’s actions may obstruct justice in this broader, structural sense even if not in a strictly legal one.
As with violations of the Constitution’s Emoluments Clause, the primary remedy for this obstruction would be political. Political remedies include elections, where the voters have a chance to register their disapproval. They also include impeachment, which is available for “high crimes and misdemeanors.” This is generally interpreted to mean misconduct related to public office, not necessarily precise criminal violations. Charges of obstruction of justice were central to the articles of impeachment of both Richard Nixon and Bill Clinton.
Impeachment is primarily a political proceeding rather than a legal one. Congress does not need to establish proof beyond a reasonable doubt of all elements of a crime the way a prosecutor does. Disregard of basic constitutional and political norms could fall short of a criminal offense and still justify impeachment. It’s up to the Members of Congress to decide whether misconduct rises to a level that would justify removing the President. For now, a great deal of additional investigation is needed before Congress could make those decisions.
As was true with alleged perjury by Attorney General Jeff Sessions, critics have been quick to accuse the President of a crime. But as I’m always telling my students, there is a lot of sleazy, unethical, and improper conduct that isn’t criminal. Trump’s potential interference with an ongoing investigation raises grave concerns. But the likely remedy lies with the political process, not a criminal prosecution.
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