Is Trump guilty of obstruction of justice? That depends ...
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President Trump’s stunning firing of FBI Director James Comey has triggered allegations that Trump is engaged in the obstruction of justice. The administration’s initial story — that Deputy Attorney General Rod Rosenstein initiated the firing process by producing his memo critical of Comey’s handling of the Clinton email investigation — is implausible on its face and has been roundly rejected.  

Rather, it appears that the decision to oust Comey originated with Trump, who then called in Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsRhode Island announces plan to pay DACA renewal fee for every 'Dreamer' in state Mich. Senate candidate opts for House run instead NAACP sues Trump for ending DACA MORE and Rosenstein to provide a justification on paper for the firing. By the next day, Rosenstein had written his memo, Sessions endorsed the firing, and Trump acted.  

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The firing followed Comey’s May 3 congressional testimony, at which he confirmed the continuation of the investigation into Russian tampering in the election and the possibility of collusion between Russia and the Trump campaign. It also followed close on the heels of a reported request by Comey for increased resources to pursue the investigation and reports that a grand jury had issued subpoenas in the investigation into former National Security Advisor Michael Flynn.

 

Trump, therefore, fired Comey as the Russia investigation appeared to move into a higher gear amid repeated false statements and expressions of frustration emanating from the White House.

So, if Trump fired Comey with the intent of impeding the Russia investigation, has he obstructed justice and, if so, what are the implications?  

The principal check on a president is impeachment. Article II, sec. 4 of the Constitution provides for removal of the president from office “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Articles of impeachment must be adopted by a majority of the House of Representatives and conviction requires a vote of two-thirds of the Senate.  

The meaning of “other high Crimes and Misdemeanors” has been hotly debated. There is no authoritative interpretation, but the consensus holds that it certainly includes a variety of conduct that violates the public trust, including serious abuses of governmental powers. Most agree that impeachable offenses are not limited to conduct that is otherwise criminally prosecutable, though the existence of criminal conduct certainly strengthens the case for impeachment.  

Fundamentally, however, impeachment is a political process. Gerald Ford, in urging the impeachment of Supreme Court Justice William O. Douglas, famously opined that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment.” Importantly, the Supreme Court has held that matters of impeachment pose political questions unsuitable for judicial review.

Obstruction of justice is both a federal crime and a well-established ground for impeachment. Under federal statutes, it is a crime to act with the specific intent to obstruct or interfere with a judicial or congressional proceeding, or a proceeding before a federal agency (such as an investigation). The proceeding must be pending at the time of the conduct and the defendant must know it.  

Regardless of the statutory crime, however, charges of obstruction of justice have been a staple of the last two substantial attempts to impeach a president. The first of three articles of impeachment adopted by the House Judiciary Committee against President Nixon accused him of obstructing the due administration of justice, in part by interfering with an investigation by the Federal Bureau of Investigation.  

Similarly, the two articles of impeachment adopted by the House against President Clinton were grounded in allegations that he had impeded the administration of justice by making false statements and engaging in a cover-up.

Interestingly, the Constitution explicitly contemplates the possibility of criminal prosecution following impeachment and removal from office, but is silent regarding whether a sitting president can be charged with a crime. Because of that uncertainty, a grand jury named Nixon as an unindicted co-conspirator, but did not indict him.  

Trump had the authority to remove Comey, but he could not do it for the wrong reason. As Rosenstein’s memo — which is otherwise disturbingly incomplete as an assessment of Comey’s tenure and the consequences of his removal — detailed, there were good reasons to fire Comey. His repeated breaches of FBI and Department of Justice norms, including his usurpation of the powers of the Attorney General in July and his inexcusable insertion of the FBI into electoral politics through his letter to Congress eleven days before the election, provided ample grounds for his termination.  

But, it is simply not credible that those actions motivated Trump, who had high praise for Comey during the campaign and into the early days of the administration. It appears from current reporting that Trump expressed displeasure with Comey only after Comey confirmed the FBI’s investigation into Russian meddling in the election and allegations of collusion between Russia and the Trump campaign.   

While Comey’s firing may well intensify the investigation into Russian connections, Trump’s intent and not his effectiveness will determine whether Comey’s firing finds its way into an article of impeachment or a subsequent indictment.

William Yeomans is a Fellow in Law and Government at American University Law School. He previously spent 26 years at the Department of Justice.


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