No hin­drance

Ob­struc­tion of jus­tice case would be dif­fi­cult to pros­e­cute.

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

It’s not clear that a sit­ting pres­i­dent could ever be con­victed of ob­struc­tion of jus­tice, le­gal ex­perts said, lay­ing out the gi­ant task that would face any­one try­ing to pros­e­cute a case against Pres­i­dent Trump and his in­ter­ac­tions with fired FBI Di­rec­tor James B. Comey.

Mr. Comey strug­gled to make the case him­self in tes­ti­mony Thurs­day, say­ing that while he felt pres­sure, the pres­i­dent never di­rectly or­dered him to back off any part of the probe into Rus­sian med­dling in the 2016 elec­tion.

Lawyers took to tele­vi­sion and Twit­ter to parse Mr. Comey’s rev­e­la­tions and opine on whether they rose to the level of crim­i­nal dan­ger to Mr. Trump, in a de­bate re­mark­ably sim­i­lar to the one last year over whether Demo­cratic pres­i­den­tial can­di­date Hil­lary Clin­ton broke the law with her emails.

But Congress’ le­gal arm, the Con­gres­sional Research Ser­vice, said in a memo last month that mak­ing a case against a sit­ting pres­i­dent would “face unique hur­dles.”

The an­a­lysts said it’s un­clear that a pres­i­dent can even face ob­struc­tion of jus­tice charges. The Jus­tice De­part­ment for years has held that the sit­ting pres­i­dent is im­mune from crim­i­nal charges. Courts haven’t weighed in on the sub­ject.

Mean­while, the statute most likely to ap­ply, Sec­tion 1505 of the crim­i­nal code, gov­erns those who ob­struct ad­min­is­tra­tive pro­ceed­ings. The CRS said fed­eral courts have “not reached con­sen­sus” over whether an FBI in­ves­ti­ga­tion rises to the level of a “pend­ing pro­ceed­ing” for pur­poses of the law.

“No fed­eral court has plainly held that Sec­tion 1505 cov­ers FBI in­ves­ti­ga­tions,” the CRS said.

But even be­yond def­i­ni­tions, the CRS said, prose­cu­tors would have to prove in­tent.

“Ev­i­dence that a sit­ting pres­i­dent did, in fact, hin­der an FBI in­ves­ti­ga­tion would not be enough; prose­cu­tors would also face the po­ten­tially dif­fi­cult task of es­tab­lish­ing the pur­pose be­hind a pres­i­dent’s ac­tions,” the le­gal anal­y­sis con­cluded in the May 19 memo, which ex­am­ined Mr. Comey’s claims, based on leaks he or­ches­trated to The New York Times.

Mr. Comey ex­panded on those claims in Thurs­day’s hear­ing, say­ing that while Mr. Trump did not ac­tu­ally end up hin­der­ing his probe, the for­mer di­rec­tor said he con­sid­ered the pres­i­dent’s ac­tions an at­tempt to ex­ert pres­sure.

Mr. Comey at one point said he didn’t know “for sure” why he was fired, but later was more de­fin­i­tive, say­ing he was “fired in some way to change, or the en­deavor was to change the way the Rus­sia in­ves­ti­ga­tion was be­ing con­ducted.”

Whether that amounts to ob­struc­tion of jus­tice he said he’d leave for newly minted spe­cial coun­sel, Robert F. Mueller, who’s now head­ing the Rus­sia in­ves­ti­ga­tion.

“I don’t think it’s for me to say whether the con­ver­sa­tion I had with the pres­i­dent was an ef­fort to ob­struct. I took it as a very dis­turb­ing thing, very con­cern­ing, but that’s a con­clu­sion I’m sure the spe­cial coun­sel will work to­ward, to try and un­der­stand what the in­ten­tion was there, and whether that’s an of­fense,” Mr. Comey tes­ti­fied.

Mr. Comey said Mr. Trump’s ex­act state­ment to him was that he “hoped” the FBI would drop its probe into for­mer Na­tional Se­cu­rity Ad­viser Michael Flynn. The FBI di­rec­tor said that while Mr. Trump did not or­der him to drop the in­ves­ti­ga­tion, “I took it as a di­rec­tion.”

“You may take it as a di­rec­tion, but that’s not what he said,” coun­tered Sen. James E. Risch, Idaho Repub­li­can. “Cor­rect,” Mr. Comey con­curred. “Do you know of any­one that’s ever been charged for hop­ing some­thing?” Mr. Risch said.

“I don’t, as I sit here,” Mr. Comey said. Politi­cians and pun­dits rushed to dis­sect Mr. Comey’s tes­ti­mony and what it means for Mr. Trump’s le­gal jeop­ardy.

An­thony D. Romero, ex­ec­u­tive di­rec­tor of the Amer­i­can Civil Lib­er­ties Union, said Mr. Comey’s sense that Mr. Trump was try­ing to set up a “pa­tron­age” re­la­tion­ship — al­low­ing the di­rec­tor to keep his job, in ex­change for ow­ing Mr. Trump — could be the ba­sis for an ob­struc­tion case.

“Try­ing to set up a quid pro quo ar­range­ment with the FBI di­rec­tor would cer­tainly es­tab­lish an in­tent to ob­struct jus­tice,” Mr. Romero said in his anal­y­sis of the hear­ing.

In Congress, Rep. Al Green said the mat­ter was clear enough to de­serve ouster from of­fice.

“The pres­i­dent has ob­structed jus­tice, and the pres­i­dent should be im­peached,” said the Texas Demo­crat, who is al­ready draw­ing up ar­ti­cles of im­peach­ment.

But Don­ald Trump Jr., the pres­i­dent’s son, took to Twit­ter to say that the ex­change was “Very far from any kind of co­er­cion or in­flu­ence and cer­tainly not ob­struc­tion!”

“Know­ing my fa­ther for 39 years when he ‘or­ders or tells’ you to do some­thing there is no am­bi­gu­ity, you will know ex­actly what he means,” the younger Mr. Trump tweeted.

For­mer FBI Di­rec­tor James B. Comey said un­der oath that while he be­lieved Pres­i­dent Trump hoped he’d drop the Michael Flynn in­ves­ti­ga­tion, Mr. Trump didn’t ex­plic­itly ask.

Idaho Repub­li­can Sen. James E. Risch (left) asked Mr. Comey if Pres­i­dent Trump specif­i­cally di­rected him to end his in­ves­ti­ga­tion into Mr. Flynn. “You may take it as a di­rec­tion, but that’s not what he said,” Mr. Risch said, to which Mr. Comey replied, “Cor­rect.”

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