Sun Sentinel Palm Beach Edition
Comey cut, but president’s words undercut him
Apparent linking of reason to Russia probe problematic
WASHINGTON — A growing number of legal experts say President Donald Trump opened himself up to a charge of obstruction of justice when he said “this Russia thing with Trump” was on his mind when he fired FBI Director James Comey.
The federal law against obstruction of justice, a felony, is written broadly and applies to pending investigations. It can cover anyone who “corruptly ... endeavors to influence, obstruct or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.”
In another section, the word “corruptly” is defined as “acting with an improper purpose.”
Trump’s repeated references to the Russia investigation in interviews, tweets and the letter firing Comey could be interpreted as an effort to “obstruct or impede” the investigation, the legal experts said.
The threat is not a theoretical one: Both of the two presidents who were impeached in the modern era, Richard Nixon and Bill Clinton, were accused of obstruction of justice.
Trump, however, would have several defenses.
One of the most powerful, although not flattering, lines of defense would be that he did not act “with an improper purpose,” but, instead, acted simply because he was impulsively angry.
At first, the president’s aides had insisted the FBI chief was dismissed last week based on the recommendation of top Justice Department officials and because of his handling of the 2016 email investigation involving Hillary Clinton.
But Trump in a TV interview two days later said he made the decision to fire Comey prior to consulting the Justice Department because the FBI chief was a “showboat” and was mishandling the department.
He acknowledged that the Russia probe was one of the things he considered.
“In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.”
Then on Friday, Trump responded to reports by Comey supporters that during a private dinner months ago, Trump demanded Comey pledge his loyalty to Trump and that Comey refused. The White House denied such a pledge was sought.
In a tweet Friday that many viewed as a veiled threat, Trump wrote, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
Trump has also revealed that he had three conversations with Comey, including one in which he asked whether he was under investigation. Trump claims Comey three times assured him that he was not.
Comey told a House panel in March investigators were looking into possible illegal “coordination” between the Trump campaign and Russians.
Legal experts said the president’s statements look to be damaging.
“If one of the reasons the president fired Mr. Comey was to subvert or influence FBI investigations of Trump campaign associates, it is hard to resist the conclusion that this was obstruction of justice,” said Ryan Goodman, a New York University law professor and the editor of the Just Security blog.
“No defense lawyer would have wanted their client to utter the incriminating words the president said on NBC to Lester Holt.”
Former White House counsel Bob Bauer, who served under President Barack Obama, said Trump may have “blundered” into legal trouble because he does not understand or accept that the president should not involve himself in a criminal investigation.
But in a criminal case, prosecutors must prove the defendant acted out of a corrupt or improper purpose.
“It’s not an easy charge to prove because the key is motivation,” said Jennifer Daskal, a law professor at American University.
In his NBC interview, Trump said he did not seek to halt the FBI’s Russian probe, but rather sought to make sure it was done well.
“As far as I’m concerned, I want that thing to be absolutely done properly,” the president said. “Maybe I’ll expand that, you know lengthen the time.” Regarding the investigation, he added, “I want that to be so strong and so good. And I want it to happen.”
Those comments give the president and his lawyers cover to rebut any claim that he sought to obstruct the FBI probe.
But Daskal also said Trump’s comments could still cause him trouble.
“He keeps undercutting his own arguments. And his words and actions increasingly point in the direction that he acted to tamp down the investigation,” she said.