Is Trump Guilty Of Obstruction Of Justice? Comey Laid Out The Case

Jun 10, 2017
Originally published on June 10, 2017 1:46 pm

All we want are the facts, ma'am.

During his congressional testimony Thursday, James Comey played his best Sgt. Joe Friday, the protagonist of the 1950s Dragnet TV series known for that signature line.

Asked whether he thought President Trump obstructed justice, Comey, the fired FBI director, declined to give his opinion.

"I don't know," Comey said. "That — that's Bob Mueller's job to sort that out."

Mueller is the former FBI director who is now the special counsel in charge of the investigation into Russian meddling in the 2016 presidential election and Trump campaign associates' connections to Russia.

Comey admitted to authorizing the leak of a memo he wrote about a meeting with the president that gave him pause. And he did it for an eyebrow-raising reason — "because I thought that might prompt the appointment of a special counsel," Comey said.

For as much as Comey wanted to be the indefatigable facts man full of public rectitude, he clearly thought Trump had done something wrong — and he revealed that he had an agenda.

While Comey may not have expressed an overt opinion about whether Trump is guilty of obstruction of justice, the careful former prosecutor certainly laid out a set of facts that any prosecutor could use to try to prove just that.

Trump has contested Comey's testimony, saying in a news conference Friday that Comey said things that "just weren't true." Specifically, Trump claimed he never asked for a pledge of loyalty from Comey or asked Comey to let go of investigating former national security adviser Michael Flynn.

Someone's lying.

Comey was under oath on Thursday — and he accused Trump of lying. Pressed Friday, the president said he would be "glad" to testify under oath if that's what Mueller wants, "100 percent." Asked whether there are tapes of the conversations with Comey, which the president teased on Twitter after Comey's firing, Trump seemed to have his bluff called.

"I'll tell you about that maybe sometime in the near future," he said. "You're going to be very disappointed when you hear the answer, don't worry."

Comey, during testimony Thursday, said he welcomed their release. "Lordy, I hope there are tapes."

Until Trump does go under oath, any of his accusations against Comey should be met with skepticism. He and his White House have damaged their credibility with a history of falsehoods and misstatements on things small and large.

So what is obstruction of justice anyway?

There are a lot of people with assured opinions about whether Trump obstructed justice in this case, if the facts Comey lays out are true.

On the one hand: " 'No question' Trump involved in obstruction of justice: Former Watergate prosecutor."

But on the other: "What Comey described wasn't obstruction of justice. Here's why."

First, what exactly constitutes obstruction of justice? Here's how Cornell Law School explains it:

"Obstruction of justice is defined in the omnibus clause of 18 U.S.C. § 1503, which provides that '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 administration of justice, shall be (guilty of an offense).' Persons are charged under this statute based on allegations that a defendant intended to intefere with an official proceeding, by doing things such as destroying evidence, or intefering with the duties of jurors or court officers.

"A person obstructs justice when they have a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the defendant's endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus.

"§ 1503 applies only to federal judicial proceedings. Under § 1505, however, a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal agency. A pending proceeding could include an informal investigation by an executive agency."

What the case for obstruction may come down to

Comey issued a detailed opening statement the day before the hearing. In it, he said that during a Feb. 14 meeting in the Oval Office, the president dismissed a large group that was in the office, including Attorney General Jeff Sessions and Trump's son-in-law and senior adviser, Jared Kushner.

Trump told them he wanted to speak to Comey alone.

At one point, the president even waved off White House Chief of Staff Reince Priebus, who had poked his head in to check on the meeting.

"I hope you can see your way clear to letting this go, to letting Flynn go," Trump told Comey, according to Comey's notes. "He is a good guy. I hope you can let this go."

Trump denies he said this, both through his lawyer and in the news conference Friday.

But as the investigation picked up steam, and Flynn was increasingly a key player, the president fired Comey. The White House initially cited a memo from the deputy attorney general about Comey's handling of the Clinton email investigation during the campaign.

Trump later undermined that rationale in an interview with NBC's Lester Holt. Comey believed the reasoning was dubious, and, for him, the NBC interview confirmed that he was fired because of the Russia investigation.

There are a few key points in all of this to dig into to determine whether what Trump did, if Comey's account holds up, is obstruction (which can be difficult to prove).

1. What did Trump mean by "hope"?

2. Does Trump dismissing senior officials during his one-on-one meeting with Comey constitute intent? and

3. Is it reasonable to assume that Trump was hoping to quash the FBI's investigation with Comey's firing?

Let's take these point by point.

1. Hope and change the investigation?

The line about "hope" was at the center of questioning by some Republicans. Sen. Jim Risch of Idaho, also a former prosecutor, was making Trump's case.

"Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this — they said, or thought, they hoped for an outcome?" Risch asked.

Comey said he wasn't sure, but added insistently, "I took it as a direction. I mean, this is the president of the United States, with me alone, saying, 'I hope' this. I took it as this is what he wants me to do."

In response to questioning from Sen. Dianne Feinstein, D-Calif., Comey defended not telling agents working on the case about the interaction with the president:

"We don't want the agents and analysts working on this to know the president of the United States has — has asked — and when it comes from the president, I took it as a direction — to get rid of this investigation, because we're not going to follow that — that request."

2. Did Trump clearing the room equal intent?

Comey seemed intent on making sure there was no ambiguity that he thought it was a big deal that Trump asked others to leave. Here is how he laid it out in his opening statement:

"The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me. When the door by the grandfather clock closed, and we were alone, the President began by saying, 'I want to talk about Mike Flynn.' "

Oklahoma Republican Sen. James Lankford attempted a Trump defense, noting that the president has already tweeted publicly that he "is not real fond of this investigation."

He is telling 6 billion people he doesn't like it, Lankford noted, before asking this: "Do you think there's a difference in that?"

Without missing a beat, Comey answered — absolutely, there was a difference.

"I think there's a big difference in kicking superior officers out of the Oval Office, looking the FBI director in the eye and saying, 'Hope you'll let this go,' " Comey shot back. "I think if our — if the agents, as good as they are, heard the president of the United States did that ... there's a real risk of a chilling effect on their work. That's why we kept it so tight."

Comey stressed repeatedly the significance of Trump dismissing the attorney general and Kushner. Early on in the hearing, for example, Comey set this dramatic scene — veering from just the facts with a subjective interpretation of Sessions' and Kushner's behavior:

"My impression was something big is about to happen. I need to remember every single word that is spoken. And, again, I could be wrong, but I'm 56 years old. I've been — seen a few things. My sense was the attorney general knew he shouldn't be leaving, which is why he was lingering. And I don't know Mr. Kushner well, but I think he picked up on the same thing. And so I knew something was about to happen that I needed to pay very close attention to."

If that wasn't enough, later Comey implored the committee:

"You got to take it all together. And I've tried to be open and fair and transparent and accurate. A really significant fact to me is, so why did he kick everybody out of the Oval Office?"

And in case you missed that he thought it was significant, with his next breath, he seemed to pull the curtain back and try to show the committee the road map for how to build a case, even noting how he would gather evidence as an investigator:

"Why would you kick the attorney general, the president, the chief of staff out, to talk to me, if it was about something else? And so that — that, to me, is — as an investigator, is a very significant fact."

Comey tried to get across that he thought what Trump did was so inappropriate, so much of a threat, that he said he did not want to be left alone with the president again:

"I specifically, as I said in my testimony, asked the — told the attorney general, it can't happen that you get kicked out of the room and the president talks to me."

House Speaker Paul Ryan, R-Wis., acknowledged the interaction was inappropriate but chalked it up to Trump being a harmless political naïf.

"Of course there needs to be a degree of independence between [the Justice Department], FBI and the White House, and a line of communications established," Ryan said Thursday across the Capitol from where Comey was testifying. "The president's new at this. He's new to government. So, he probably wasn't steeped in the long-running protocols that establish the relationships between DOJ, FBI and White Houses. He's just new to this."

But Comey's testimony undercuts this line of reasoning. The picture Comey paints is not of political naïveté on the president's part but of one who intended to pressure him, who knew exactly what he was doing and who knew he might be about to say something that could be construed as inappropriate even by top White House allies.

3. Out of the fire

Russian Foreign Minister Sergey Lavrov feigned surprise and disbelief when he heard from reporters at the State Department that Comey had been fired the day before.

"Was he fired?" he asked with a smirk. "You're kidding," he added, before walking away.

That was the same day, across town at the White House, that Trump bragged to the Russians that he had fired Comey and that pressure had been taken off the investigation.

"I just fired the head of the FBI. He was crazy, a real nut job," Trump told Lavrov and other Russian officials gathered in the Oval Office exactly one month ago, according to The New York Times. "I faced great pressure because of Russia. Now, that's taken off."

In his testimony, Comey made note of that, mentioning that Trump brought up his firing as evidence that the investigation would lighten up now.

"It confused me when I saw on television the president saying that he actually fired me because of the Russia investigation and learned, again, from the media that he was telling, privately, other parties that my firing had relieved great pressure on the Russia investigation," Comey said.

"[T]elling, privately, other parties" is a clear allusion to the Trump meeting with Russian officials in the Oval.

But that was not the only mention:

"I know I was fired. Again, I take the president's words. I know I was fired because of something about the way I was conducting the Russia investigation was, in some way, putting pressure on him, in some way, irritating him. And he decided to fire me because of that."

And:

"It's my judgment that I was fired because of the Russia investigation. I was fired, in some way, to change — or the endeavor was to change the way the Russia investigation was being conducted."

Comey repeatedly implied that he believed Trump was holding his desire to stay in the job over his head, thinking he could extract loyalty from him, a quid pro quo:

"My common sense told me that what was going on is either he had concluded, or someone had told him, that you didn't — you've already asked Comey to stay, and you didn't get anything for it, and that the dinner was an effort to build a relationship — in fact, he asked specifically — of loyalty in the context of asking me to stay."

Comey expanded on what he found to be the significance of being fired because of the Russia investigation (just in case the senators and viewing audience couldn't discern it for themselves):

"That is a — that is a very big deal, and not just because it involves me. The nature of the FBI and the nature of its work requires that it not be the subject of political consideration. And on top of that, you have — the Russia investigation itself is vital, because of the threat. And I know I should've said this earlier, but it's obvious — if any Americans were part of helping the Russians do that to us, that is a very big deal. And I'm confident that, if that is the case, Director Mueller will find that evidence."

Once again, it was another Mueller reference from Comey. That is yet another bread crumb Comey is laying out for investigators to follow and connect to intent — that Trump was trying to quash the investigation. "Again, I take the president's words. ..."

The trail is out there. And Mueller is an uberdetailed, hyperthorough investigator. He will likely pick each one up with tongs and latex gloves, put them in a Ziploc bag and have them sent back to the lab for examination, leaving no bread crumb unanalyzed.

After all, as Comey said in the hearing, "In any complex investigation, when you start turning over rocks, sometimes you find things that are unrelated to the primary investigation, that are criminal in nature."

The president has hired a bulldog lawyer, one who has protected Trump's interests — and his brand — over the years. He's a loyalist and a corporate lawyer — not a criminal defense attorney.

If Trump and his team aren't careful — and they don't start treating this as a genuine legal problem instead of just a political one — all the president's men could find themselves in a heap of trouble.

And that doesn't mean his political problem is going away. Even if Mueller doesn't believe the standard for criminal prosecution of obstruction is met, his findings, if he puts credence in Comey's testimony, could be damning and lay the foundation for articles of impeachment when or if Democrats wrest back control of Congress at some point in the Trump presidency.

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