A legal primer to problems confronting Donald Trump

Comey claims of Trump pressure to ‘lift the cloud’ of Russia inquiry may be obstruction

US president may be accused of obstructing justice. Photograph: Reuters

US president may be accused of obstructing justice. Photograph: Reuters


The testimony by former FBI director James Comey that US president Donald Trump, before firing him last month, demanded loyalty, urged him to drop the investigation into his former national security adviser and pressed him to “lift the cloud” of the Russia inquiry is fuelling accusations that the president obstructed justice.

Comey’s prepared testimony, which the Senate Intelligence Committee released Wednesday, corroborates prior reports by the New York Times about how Comey’s strained relationship with the president evolved, which had already prompted Democrats to raise the spectre of the obstruction crime.

Moreover, Trump himself told NBC News last month that when he fired Comey, he had been thinking about the FBI’s investigation into whether his associates co-ordinated with Russia in its interference in the 2016 election. The Times has reported that the day after the firing, Trump told Russian diplomats in the Oval Office that firing Comey had relieved “great pressure because of Russia.”

In a statement last month after The Times’ report about the conversation over former national security adviser Michael Flynn, the White House said “the president has never asked Mr Comey or anyone else to end any investigation, including any investigation involving Gen Flynn.”

“The president has the utmost respect for our law enforcement agencies, and all investigations,” said the White House. “This is not a truthful or accurate portrayal of the conversation between the president and Mr Comey.”

What is obstruction of justice?

Several federal statutes criminalise actions that impede official investigations. While some examples of illegal ways to thwart the justice system are specific – like killing a witness or destroying evidence – the law also includes broad, catchall prohibitions. For example, Sections 1503, 1505 and 1512 of Title 18 have variants of language making it a crime if someone corruptly “obstructs, influences or impedes any official proceeding.”

Could that cover asking the FBI chief to drop part of an investigation, and later firing him?

In theory, yes. Such statutes were broadly drafted. Julie O’Sullivan, a former federal prosecutor who now teaches white-collar criminal law at Georgetown University, says the power relationship between a president and the FBI director could elevate a request to shut down a case into an act that amounts to impeding an official investigation.

“He really needs a lawyer,” said O’Sullivan said of Trump in May. “He is building a beautiful case against himself.”

Did Trump have lawful authority to fire Comey?

Yes. But courts have ruled that otherwise lawful acts can constitute obstruction of justice if done with corrupt intentions. In a 1998 case, for example, a federal appeals court upheld the conviction of a lawyer who had filed legal complaints and related motions against a government agent who was investigating an illegal gambling operation. The court ruled that the defendant’s “nominally litigation-related conduct” was unlawful because his real motive was “to safeguard his personal financial interests” in the corrupt enterprise.

What would such a case entail, in theory?

Obstruction of justice cases often come down to whether prosecutors can prove defendants’ mental state when they committed the act, legal specialists said. It is not enough to show that a defendant knew the act would have a side consequence of impeding an investigation; achieving that obstruction has to have been the specific intention.

Samuel Buell, a former federal prosecutor who led the Justice Department’s Enron task force and now teaches criminal law at Duke University, was initially sceptical about whether the mere firing of Comey could prove beyond a reasonable doubt that Trump had improper intent. But subsequent revelations, he said, made the evidence much more robust.

“The evidence of improper purpose has gotten much stronger since the day of Comey’s firing,” Buell said. “Trump has made admissions about that. And we now have evidence that he may have indicated an improper purpose previously in his communications with Comey about the Russia investigation.”

What impediments would there be to charging Trump?

O’Sullivan said it was not realistic to expect the Justice Department to charge the sitting president.

What about impeachment?

“Asking FBI to drop an investigation is obstruction of justice,” Republican Ted Deutch said after the initial report of the Oval Office conversation about Flynn. “Obstruction of justice is an impeachable offense.” Both US presidents who were subjected to impeachment proceedings in the last century Bill Clinton in 1998 and Richard M Nixon in 1974 were accused of obstruction of justice. While it can be a murky task in court to interpret the obstruction statutes, said David Sklansky, a former federal prosecutor who teaches at Stanford, impeachment proceedings are different. They is a “quasi-judicial, quasi-political process” he noted; the House and the Senate determine for themselves whether the standards are met.

In other words, as a practical matter, the Constitution’s standards for impeachment and removal of a president – if he has committed “treason, bribery, or other high crimes and misdemeanours” – are met by anything that a majority of the House and two-thirds of the Senate are willing to vote for.

That makes prognostication an exercise in vote counting, not legal analysis.

New York Times