Professor Jed Shugerman wrote a blog post about ex-FBI Chief James Comey’s congressional testimony.
Let’s first review the evidence and new allegations.
On May 11, in an interview with Lester Holt here, this was Trump’s key admission: “And in fact when I decided to just do it [fire Comey,]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’ve won.’”
- From the official transcript of Trump’s meeting with Kislyak and Lavrov: “I just fired the head of the F.B.I. He was crazy, a real nut job… I faced great pressure because of Russia. That’s taken off.”
- Comey is expected to document Trump’s pressure to end the Russia investigation on Thursday. And we have the following stories tonight:
- Comey telling Sessions not to leave him alone with Trump, because he knew Trump would be interfering with FBI independence.
- Trump allegedly clearing the room so he could ask Coats and Pompeo to get Comey to back off of the Russia investigation.
- There also is an old story of trying to manipulate U.S. intelligence officers to support his false accusation that Obama wire-tapped Trump Tower, which also could constitute obstruction of justice.
The problem is that our legal system has never addressed a president firing a law enforcement officer in order to end that officer’s investigation into his own administration.
Of course, the president has the power to fire a law enforcement official, just like he has the power to drop a bomb on someone, but the power to act in one way generally does not make any intent to do that act “legal.” The president has the constitutional authority to order a raid, order lethal force, or issue immigration bans, but that does not insulate those acts from an inquiry into the motives behind those acts, and those motives can constitute felonies (or in the case of an immigration ban, intent can render the ban illegal/unconstitutional). Moreover, a president has the power to de-classify intelligence (see the Lavrov/Kislyak meeting), but what if he was acting as part of a quid-pro-quo bribe? Or as part of blackmail to keep past crimes secret? Again, having the power to act does not mean immunity from illegal inent in acting.
The bottom line seems to be whether the defendant acted obstructively when foreseeing a proceeding, or if the obstruction would probably lead to interference with the administration of justice. To interpret this statute, I am relying on Charles Doyle’s publication for the Congressional Research Service.
Recently the Fifth Circuit has held that, “Though a proceeding need not be actually pending at the time of the obstructive act, an obstruction of justice conviction requires some nexus between the obstructive act and some official government proceeding. A proceeding must at least be foreseen, such that the defendant has in contemplation some particular official proceeding in which the destroyed evidence might be material.” United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014).
The 11th Circuit observed a trial court’s instruction to the jury that an element of obstruction can be merely that “the natural and probable effect of the defendant’s conduct would be the interference with the due administration of justice.” United States v. Townsend, 630 F.3d 1003, 1015 n. 8 (11th Cir. 2011).
One observation: Though the text of 1512(c)(2) is broad, 1512(c)(1) applies more narrowly to destruction of evidence. It is possible to read the second part more narrowly in light of the first part as a matter of structural interpretation, but that’s not limited by a closer textual interpretation.
Beyond 1512(c)(2), there are two other statutes that may apply, but courts have often applied them more narrowly than in this case.
18 U.S. Code Section 1505: Obstruction of proceeding before departments, agencies, and committees: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or 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, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—Shall be fined under this title, imprisoned not more than 5 years ….”
Again, I am relying on Charles Doyle’s publication for the Congressional Research Service. “The crime of obstruction of [such]proceedings has three essential elements. First, there must be a proceeding pending before a department or agency of the United States. Second, the defendant must be aware of the pending proceeding. Third, the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.” United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).
First, what is a proceeding? Courts have interpreted this term broadly. An investigation itself has been interpreted as a proceeding. United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). In Kelley, the D.C. Circuit notes that an investigation under Section 505 needs to be more than “a mere police investigation,” and it cites a case excluding an FBI investigation under this statute. Thus, more weight should go to the provision on an inquiry or investigation by Congress. Arguably, Trump dismissed Comey because of his past role in Congressional inquiries and his potential role.
Second, Trump was obviously aware of the investigation.
Third, what is the requisite intent and what constitutes corruption? I quote Doyle: “In the case of either congressional or administrative proceedings, §1505 condemns only that misconduct which is intended to obstruct the administrative proceedings or the due and proper exercise of the power of inquiry. In order to overcome judicially-identified uncertainty as to the intent required, Congress added a definition of “corruptly” in 1996: “As used in §1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information,” 18 U.S.C. 1515(b). Examples of the type of conduct that have been found obstructive vary.”
Please note that impeachment is not limited to statutory crimes, but draws from a technical English legal term for political abuses. Many Founders are on the record explaining that “High Crimes and Misdemeanors” is about political abuse of power, rather than statutory felonies.
Nevertheless, the politics of impeachment are stronger if one can identify a concrete statutory felony, so that the high crime is also a regular crime on the books. If it’s less subjectively political, the more persuasive it is to the public and the GOP.
The other political problem is that we have a reverse Watergate. In Watergate, the underlying crime was clear, but the President’s role was unclear (and it turned out that the only proven role was the cover-up). Here, we have a signs of a cover-up/obstruction, but not yet proof of the underlying crime. Legally, Trump can be convicted for obstruction even if there was no merit to the accusation. But politically, it is a problem. So it is politically important, if not legally necessary, to find some kind of collusion or glaringly illegal act by Flynn, Kushner, Manafort, Page, etc. I suspect those crimes will come to light, even if Donald Trump did not commit them himself.