Reports that President Donald Trump pressured FBI Director James Comey in February to drop the bureau’s investigation into former national security adviser Michael Flynn have led lawmakers and legal experts to question whether Trump obstructed justice — a criminal and impeachable offence.
The New York Times reported Tuesday that Comey wrote a memo immediately after meeting with Trump on February 14, one day after Flynn was asked to resign. The document “was part of a paper trail Mr. Comey created documenting what he perceived as the president’s improper efforts to influence an ongoing investigation.”
“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump told Comey, according to the memo.
The FBI is currently investigating Flynn’s contact with Russian ambassador Sergey Kislyak as part of its probe into Russia’s interference in the 2016 election. The bureau interviewed Flynn about his conversations with Kislyak in January as part of that probe.
Obstruction of justice is defined quite broadly: it involves any conduct in which a person wilfully interferes with the administration of justice.
But to charge Trump with obstructing justice based on the Comey memo alone would not be an easy case, said Robert Deitz, a former senior counselor to the CIA director and former general counsel at the National Security Agency. That is primarily because it is unclear whether Trump was “ordering” Comey to end the FBI’s investigation into Flynn or simply asking Comey if he would consider dropping the case because Flynn “is a good guy.”
According to CNN’s Jake Tapper, Comey didn’t resign or go to the press after Trump made the request because he didn’t see it as “a very successful effort and he thought he’d pushed back on it.”
Legal and national security experts at Lawfare have also said that prosecutors have to prove that “the defendant corruptly endeavoured to influence, obstruct, or impede” an investigation in order to charge them with obstructing justice. That element “is the hardest to prove, because it depends on showing an improper motive.”
But there are a couple important caveats.
‘The president fired the FBI director’
According to Comey’s memo, Trump asked Attorney General Jeff Sessions and Vice President Mike Pence to leave the room before he asked the then-FBI director to drop the investigation into Flynn’s contact with the Russians. That, according to Lawfare, “may indicate intent.”
CNN legal analyst Jeffrey Toobin agreed that Trump’s request for Pence and Sessions to scram “suggests consciousness of guilt.” Susan Hennessey, a former National Security Agency attorney, told CNN on Tuesday that “if any part of Trump’s intention here was to interfere with the investigation, that’s going to qualify as obstruction.”
Trump’s conversation with Comey was part of a broader pattern that could more easily open him up to obstruction charges, experts say — beginning with Trump’s reported requests for loyalty from Comey and assurance that he wasn’t under FBI investigation, and ending last week when he fired him.
“Historically, obstruction of justice articles of impeachment do elaborate a pattern of conduct,” the legal experts at Lawfare wrote.
“The first article of impeachment against Richard Nixon, for instance, included making false statements to investigators, withholding evidence, counseling witnesses to lie or give misleading testimony, and “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States and the Federal Bureau of Investigation.”
Trump told NBC’s Lester Holt last week, days after he fired Comey, that he asked the FBI director three times if he was being investigated by the bureau as part of its probe into Russia’s election interference.
“Not every day the president flirts with outright admitting to obstruction of justice in an interview on the record,” MSNBC’s Chris Hayes tweeted shortly after the interview aired.
Bob Bauer, former White House counsel to President Barack Obama, also questioned whether Trump’s “demands for reassurance, by their very repetitiveness,” implied that Trump “was bringing pressure on the person in charge of a criminal investigation to limit it.” In doing so, Bauer said, he was obstructing justice.
But, as Lawfare’s experts wrote, “the president’s potentially obstructive behaviour was not limited to allegedly asking repeatedly whether he was under investigation.”
Reports surfaced soon after Comey was fired that Trump had demanded his personal loyalty more than once — first during a one-on-one dinner in late January, and again just days before Comey testified in an open Senate Judiciary Committee hearing earlier this month.
Comey had not allowed the White House to preview his testimony, which Trump and his aides considered “an act of insubordination,” according to Reuters. The New York Times echoed that report, saying Trump was broadly irked by his inability to gain assurances of loyalty from Comey.
Deitz, who said an obstruction case would not be easy, said that he “personally would be willing to take this case to a jury — especially coupled with [Trump’s] supposed demand that Comey be loyal.”
Richard Painter, a professor at the University of Minnesota who served as President George W. Bush’s chief ethics lawyer from 2005 through 2007, told Business Insider on Tuesday that “obstruction of justice would be occurring if there were an express or implied threat to fire” Comey if he didn’t drop the Russia probe.
“That’s obstruction of justice,” Painter said. “The president fired the FBI director … it’s all evidence of a major scandal and abuse of power.”
‘The president has willingly created this self-portrait’
Trump said he was thinking about “the Russia thing” when he fired Comey — specifically, thinking about how it was a “made up story.”
“Responsible for the faithful execution of the laws and the integrity of the system of justice, Mr. Trump has chosen to actively dispute the basis for an ongoing FBI investigation that affects his interests,” Bauer, Obama’s White House counsel, wrote on Friday.
Louis Seidman, a professor of constitutional law at Georgetown University, said the question of whether Trump would be found guilty in the House of Representatives for obstructing justice “is not legal, it is political.”
“Has the president violated the oath he took to support and defend the Constitution of the United States? Lawyers and law professors have no special expertise about that,” Seidman said. “It’s an issue for the American people to decide.”
When it comes to examining whether Trump sought to obstruct the FBI’s investigation into Russia’s election interference, however, and the Trump campaign’s possible role in it, the president’s pattern of behaviour and past statements about the probe will likely come back to haunt him. (Trump’s comments about barring Muslims from the US were similarly considered when federal courts were debating the intent behind his two controversial immigration orders.)
“What is most remarkable is that the president has willingly created this self-portrait,” Bauer wrote on Friday. “As scandals-in-the-making go, this one may become famous for featuring the president as the principal witness against himself: he seems committed to uncovering any cover-up.”
The Atlantic’s Peter Beinart echoed Bauer’s assessment, arguing that Trump essentially dug his own political grave in his repeated attempts to downplay and discredit an ongoing investigation into his campaign.
“As a result of his own ineptitude, Trump is politically weaker than he was on Inauguration Day even though the economy is stronger,” Beinart wrote. “And it’s harder to mount a populist assault on the rule of law when you’re not even that popular.”
CNN’s Jake Tapper put it simply on Wednesday night: “Every single one of the president’s wounds is self-inflicted.”
More from Natasha Bertrand:
- House Majority Leader told Republicans in 2016 he thought Putin was paying Trump
- Senate leaders just sent 2 explosive letters asking Comey to testify and demanding his memos
- Report: Russian bank whose CEO met secretly with Jared Kushner helped finance Trump’s Toronto hotel
- Lawmakers on both sides of the aisle are discussing impeachment amid the latest Trump-Comey bombshell
- Trump reportedly asked Comey to end the investigation into Michael Flynn before Comey was fired
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