USA TODAY International Edition
NOT ENOUGH OF A CASE FOR OBSTRUCTION
President’s actions might have been wildly inappropriate but not criminal
Former FBI director James Comey’s testimony on Thursday received the same breathless reactions that have long characterized coverage of the Russian investigation. The desire for some indictable or impeachable offense by President Trump has distorted the legal analysis to an alarming degree. The legal fact is that Comey’s testimony did not establish a prima facie — or even a strong — case for obstruction.
It’s true that if Trump asked Comey for his “loyalty” and asked him to go easy on a former senior adviser, Trump’s conduct was wildly inappropriate. However, talking like Tony Soprano does not make you Tony Soprano. Trump is not the first president to express dissatisfaction with an investigation by the Justice Department. Former president Bill Clinton made clear his own dissatisfaction with the investigations of his administration under then- Attorney General Janet Reno. It is no surprise that Trump wanted to see these investigations end. Indeed, he had a virtual hashtag to that effect. DEFINE OBSTRUCTION The crime of obstruction of justice has not been defined as broadly as suggested by commentators. While there are a couple of courts with more expansive interpretations, the crime is generally linked to obstructing a pending proceeding as opposed to an investigation. Most courts have rejected the application of obstruction provisions to mere investigations. The manual used by federal prosecutors makes that same distinction.
Trump telling Comey that Michael Flynn is “a good guy” and that he “hoped” Comey would let the matter drop is hardly a “cancer,” let alone a crime, growing on the presidency. Flynn had just resigned the day before Trump allegedly asked Comey whether he could now drop the investigation of Flynn. Trump had been told by Comey that he is not under investigation. Trump could say he felt Flynn had suffered enough. For a defense lawyer, a charge of obstruction on these facts would be a target- rich environment.
The mere fact that Trump asked to speak to Comey alone would not implicate the president in obstruction. Trump could argue that he sought to exclude Attorney General Jeff Sessions and others who were facing calls for recusal in the investigation. He could claim that he viewed this as a personal inquiry on behalf of a friend. He was, of course, wrong.
However, to treat the desire for a private conversation as inescapable evidence of obstruction is to deny the obvious defenses in the case. A prosecutor should never seek to indict a president absent a lead- pipe cinch of a case. This is no such thing. ARTICLES OF IMPEACHMENT There is also the problem of indicting a president if there was a crime and evidence to fit it. Many academics say a president cannot be indicted. It remains an open question. Judges have faced indictment before impeachments. Yet the president remains the head of the executive branch handling such prosecutions.
The proper course is for a president to be impeached and removed before any prosecution. That protection from prosecution is no gift to a president.
Impeachments are not subject to the rules of evidence or even the criminal code. Presidents can face a much broader array of evidentiary demands with far less protection under due process rules. A president can also be impeached for acts that are not technically crimes. Abuse of office is a classic example.
However, analogies to Watergate show little understanding of those articles of impeachment. The first article against President Nixon was an obstruction allegation, but it was linked to actual and serious crimes, including the break- in at the Watergate. The article listed personal actions taken by Nixon and his subordinates to procure false statements, obstruct investigators, and “to conceal the existence and scope of other unlawful covert activities.”
Ironically, those who want a criminal charge now are committing the very offense that they accuse Trump of committing: disregarding the law to achieve their desired goal.
It would be a highly dangerous interpretation to allow obstruction charges at this stage. If prosecutors can charge people at the investigation stage of cases, a wide array of comments or conduct could be criminalized. Courts have limited the crime precisely to avoid this type of open- ended crime where prosecutors could threaten potential witnesses with charges unless they cooperated.
We do not indict or impeach people for being boorish or clueless ... or simply being Donald Trump.