Comey, Trump and Obstruction of Justice

The biggest news blurb this month is surely that of former FBI director James Comey’s testimony to the Senate committee concerning certain conversations he had with President Trump. After his testimony, while not incendiary, pundits and legal experts debated over whether the testimony would be enough to impeach Mr. Trump on claims of obstruction of justice.

Obstruction of justice usually refers to someone actively preventing an investigation, or lying to them. The federal law is fairly broad when it comes to charges of obstruction of justice, with multiple statutes making it a crime to corruptly “obstruct, influence or impede any official proceeding.”

In this case, the question is whether he allegations that Mr. Trump pressured or asked Mr. Comey to stop investigating Michael Flynn with his ties to Russia, and less clearly, to remove the ‘cloud’ of the Russian investigation from his administration are enough to amount to a charge of obstruction of justice. Of course, none of this was really a secret, as Mr. Trump himself told Russian officials while visiting that firing Mr. Comey had relieved “great pressure because of Russia.” No one doubts that the firing of Mr. Comey was entirely legal and within Mr. Trump’s purview.

However, courts have held that doing otherwise lawful acts can be obstruction of justice if done with corrupt intent. Therefore, the case will revolve around Mr. Trump’s intent – both when he spoke with Mr. Comey on those occasions and when he fired him. This could be tricky, given the multiple reasons Mr. Trump gave to multiple sources after the firing, although his conversation with Russian diplomats could indicate an intent to stop or slow the investigation into his campaigns ties to Russia. The prosecution will have to show that impeding the investigation was the ultimate and specific goal of Mr. Trump when he acted.

There has been great emphasis on the testimony Comey shared when Trump said he ‘hoped’ the case against Flynn would go away – is hope enough to show intent to obstruct justice? In this case, it depends on the context. Anyone who has worked for someone with a lot of power knows when their boss says ‘I hope you can get this done by deadline’ knows that the unsaid words are ‘or you’re going to pay for it.’ Certainly, Mr. Comey clarified this by saying he didn’t share this with more people because he was afraid of the chilling effect it would have.

As Mr. Comey responded when asked if President Trump obstructed justice, he said “That’s Bob Mueller’s job to sort that out.” Mueller is the special counselor charged with investigating into Russian meddling of the presidential elections – something that Mr. Comey has completely and unequivocally stated happened, without a doubt.

Most experts agree that the Justice Department will likely not bring any criminal charges against Mr. Trump as the sitting President if there is enough to charge him with obstruction of justice. But, there is the question of impeachment, and obstruction of justice is an impeachable offense (just look at Presidents Nixon and Clinton). Impeachment hearings have a lower standard, since the members of the House and Senate have to determine for themselves if the elements of the offense of obstruction of justice are met – so, if a majority of the House and two-thirds of the Senate think Trump is guilty, he will be impeached. Looking at the makeup of Congress at this point in time, and so soon after an election, seems to indicate that impeachment in the near future is unlikely. But, if there is a shakeup in the makeup of Congress after the 2018 elections, impeachment could become a very real likelihood for the Trump administration.

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