LIES, LEAKS & ‘ LORDY’
Obstruction case is Mueller’s call
Fired FBI director James Comey sketched a case Thursday that President Trump obstructed justice by asking him to drop the bureau’s investigation of former national security adviser Michael Flynn.
In his first public comments since Trump forced him out of the bureau, Comey described the president’s request as “stunning” but maintained that “it’s not for me to say” whether Trump broke the law. That is an issue for special counsel Robert Mueller, he said.
Still, over more than two hours of testimony to the Senate Intelligence Committee, he walked lawmakers through a series of events that closely track basic
elements of a federal obstruction of justice charge.
Comey said Trump met with him alone in the Oval Office Feb. 14 after asking aides and Attorney General Jeff Sessions to leave the room. He then said Trump turned the discussion to Flynn, whom he had fired the day before. Flynn was the subject of criminal investigations into a conversation with Russia’s ambassador and statements made to FBI agents. Flynn, Comey recalled Trump saying, was “a good guy,” and “I hope you can let this go.”
“This is the president of the United States to me alone saying I hope this,” Comey said. “I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”
Whether that would amount to obstruction of justice is harder to establish. Federal law broadly prohibits people from “corruptly” attempting to influence or interfere with law enforcement proceedings. Prosecutions for violating those laws are comparatively rare — Justice Department records list 56 cases in which someone was found guilty of violating the laws since 2013 — and difficult. The government must prove that someone sought to influence the case and that their reasons for doing so were improper.
Former prosecutors said Comey’s testimony laid out sufficiently clear evidence to justify a deeper investigation of whether Trump broke the law.
“We now have a series of events that, at least based on what we know now, strongly suggests a desire to influence the investigation of Flynn,” said Dan Petalas, a prosecutor in the Justice Department’s Public Integrity Section.
The president’s lawyer Marc Kasowitz said Thursday that Trump “never sought to impede” the investigation of alleged Russian interference in the election. Trump said he did not ask Comey to end the investigation of Flynn.
Comey gave a markedly different account in his testimony and in prepared remarks released Wednesday. He began Thursday by accusing the president of lying about the basis for his firing, then spent more than two hours detailing their private interactions. Former prosecutors said his testimony shed light on some of the harder- to- prove facets of an obstruction case, in particular whether Trump would have any reason to think that asking the FBI to drop its investigation of Flynn was improper.
Of greatest significance, former prosecutors said, was Comey’s testimony that the president requested that his aides and Sessions leave the Oval Office before he spoke to Comey about Flynn.
“The inference one would draw is that Trump knew what he was about to say was inappropriate,” said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor who served under Comey. “It shows he knew that it would not be a good thing for him to say in front of a room full of people.”
Comey said he was struck by the circumstances. “A significant fact to me is so why did he kick everybody out of the Oval Office?” he said. “Why would you kick the attorney general, the president, the chief of staff out to talk to me if it was about something else? So that, to me, as an investigator, is a significant fact.”
O’Sullivan and other lawyers said it doesn’t matter whether Trump, as the government’s chief executive, had the legal authority to instruct Comey to drop an investigation or to fire him. Otherwise- legal conduct can form the basis of an obstruction charge if it’s done for an improper purpose.
“Obstruction is what gets them every time,” O’Sullivan said. “That’s one lesson that everybody in Washington pretty much knows.”