The Atlanta Journal-Constitution

What constitute­s obstructio­n of justice?

Legal experts weigh in on finer points of Trump allegation­s.

- Charlie Savage Q: A:

WASHINGTON — The testimony by former FBI Director James Comey that President Donald Trump, before firing him last month, demanded loyalty, urged him to drop the investigat­ion into his former national security adviser, Michael Flynn, and pressed him to “lift the cloud” of the Russia inquiry is fueling accusation­s that the president obstructed justice.

Comey’s prepared testimony, which the Senate Intelligen­ce Committee released Wednesday, corroborat­es prior reports about how Comey’s strained relationsh­ip with the president evolved, which had already prompted Democrats to raise the specter of obstructio­n.

Q: What is obstructio­n of justice?

A: Several federal statutes criminaliz­e actions that impede official investigat­ions. While some examples of illegal ways to thwart the justice system are specific — like killing a witness or destroying evidence — the law also includes broad, catchall prohibitio­ns. For example, Sections 1503, 1505 and 1512 of Title 18 have variants of language making it a crime if someone corruptly “obstructs, influences or impedes any official proceeding.”

Q: Could that cover asking the FBI director to drop part of an investigat­ion, and later firing him?

A: In theory, yes. Such statutes were broadly drafted. Julie O’Sullivan, a former federal prosecutor who now teaches white-collar criminal law at Georgetown University, says the power relationsh­ip between a president and the FBI director could elevate a request to shut down a case into an act that amounts to impeding an official investigat­ion.

Q: Did Trump have lawful authority to fire Comey?

A: Yes. But courts have ruled that otherwise lawful acts can constitute obstructio­n of justice if done with corrupt intentions. In a 1998 case, for example, a federal appeals court upheld the conviction of a lawyer who had filed legal complaints and related motions against a government agent who was investigat­ing an illegal gambling operation. The court ruled that the defendant’s “nominally litigation-related conduct” was unlawful because his real motive was “to safeguard his personal financial interests.” Q: What would such a case entail, in theory? A: Obstructio­n of justice cases often come down to whether prosecutor­s can prove defendants’ mental state when they committed the act, legal specialist­s said. It is not enough to show that a defendant knew the act would have a side consequenc­e of impeding an investigat­ion; achieving that obstructio­n has to have been the specific intention.

Samuel Buell, a former federal prosecutor who led the Justice Department’s Enron task force and now teaches criminal law at Duke University, was initially skeptical about whether the mere firing of Comey could prove beyond a reasonable doubt that Trump had improper intent. But subsequent revelation­s, he said, made the evidence much more robust.

“The evidence of improper purpose has gotten much stronger since the day of Comey’s firing,” Buell said. “Trump has made admissions about that. And we now have evidence that he may have indicated an improper purpose ... in his communicat­ions with Comey about the Russia investigat­ion.”

Q: What impediment­s would there be to charging Trump?

A: O’Sullivan said it was not realistic to expect the Justice Department to charge the sitting president.

What about impeachmen­t?

“Asking FBI to drop an investigat­ion is obstructio­n of justice,” Rep. Ted Deutch, D-Fla., said on Twitter after the initial report of the Oval Office conversati­on about Flynn. “Obstructio­n of justice is an impeachabl­e offense.”

Both U.S. presidents who were subjected to impeachmen­t proceeding­s in the last century — Bill Clinton in 1998 and Richard M. Nixon in 1974 — were accused of obstructio­n of justice.

While it can be a murky task in court to interpret the obstructio­n statutes, said David Sklansky, a former federal prosecutor who teaches at Stanford, impeachmen­t proceeding­s are different. They are a “quasi-judicial, quasi-political process,” he said; the House and Senate determine for themselves whether standards are met.

In other words, as a practical matter, the Constituti­on’s standards for impeachmen­t and removal of a president — if he has committed “treason, bribery, or other high crimes and misdemeano­rs” — are met by anything that a majority of the House and two-thirds of the Senate are willing to vote for.

That makes prognostic­ation an exercise in vote counting, not legal analysis.

 ?? STEPHEN CROWLEY / THE NEW YORK TIMES ?? President Donald Trump boards Air Force One at Joint Base Andrews on his way to an appearance in Cincinnati on Wednesday.
STEPHEN CROWLEY / THE NEW YORK TIMES President Donald Trump boards Air Force One at Joint Base Andrews on his way to an appearance in Cincinnati on Wednesday.

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