Tuesday’s report by The New York Times that President Donald Trump asked James B. Comey, then the FBI director, in February to drop the investigation into his former national security adviser, Michael T. Flynn, has fuelled accusations that the White House is obstructing justice.
Senator Christopher S. Murphy, Democrat-Connecticut, wrote on Twitter: “Just leaving Senate floor. Lots of chatter from Ds and Rs about the exact definition of ‘obstruction of justice.'”
Trump abruptly fired Comey last week, and later told NBC News that he was thinking about the FBI’s investigation into contacts between his campaign associates and Russia, which he has derided as fake news, when he did so. (The investigation into Flynn is separate but related.)
Trump also then appeared to threaten Comey in a post on Twitter. After a report that Trump had asked Comey whether he was loyal to him, the president said Comey “better hope that there are no ‘tapes’ of our conversations.”
Trump has denied that he asked Comey to close the FBI investigation into Flynn. In a statement Tuesday, the White House said, “The president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.”
“The president has the utmost respect for our law enforcement agencies, and all investigations,” the White House statement said. “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 director 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, said 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,” O’Sullivan said of Trump. “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 an improper mental state. But he said on Tuesday that subsequent revelations have 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?
Sullivan said it was not realistic to expect the Trump administration’s Justice Department to charge the sitting president. And Buell argued that the developments had strengthened the case for Deputy Attorney General Rod J. Rosenstein, who is overseeing the investigation because Attorney General Jeff Sessions recused himself, to appoint a special counsel to handle it.
“The issue right now is whether there needs to be a serious impartial investigation, and there can be no doubt about that at this point,” said Buell, who said the developments showed that Comey needed to be interviewed as a witness. “This kind of drip, drip, drip — we keep addressing this scenario as ‘here is the evidence, what is the result,’ but that’s only good until tomorrow when something else comes out. It is not at all clear that this is the end. If anything, it has become clearer that there is more to know.”
The biggest names involved in the Trump-Russia investigation
The biggest names involved in the Trump-Russia investigation
1/11 Paul Manafort
Mr Manafort is a Republican strategist and former Trump campaign manager. He resigned from that post over questions about his extensive lobbying overseas, including in Ukraine where he represented pro-Russian interests.
2/11 Mike Flynn
Mr Flynn was named as Trump's national security adviser but was forced to resign from his post for inappropriate communication with Russian Ambassador to the US Sergey Kislyak. He had misrepresented a conversation he had with Mr Kislyak to Vice President Mike Pence, telling him wrongly that he had not discussed sanctions with the Russian.
3/11 Sergey Kislyak
Mr Kislyak, the Russian ambassador to the US, is at the centre of the web said to connect President Donald Trump's campaign with Russia.
4/11 Roger Stone
Mr Stone is a former Trump adviser who worked on the political campaigns of Richard Nixon, George HW Bush, and Ronald Reagan. Mr Stone claimed repeatedly in the final months of the campaign that he had backchannel communications with WikiLeaks founder Julian Assange and that he knew the group was going to dump damaging documents to the campaign of Democratic candidate Hillary Clinton - which did happen. Mr Stone also had contacts with the hacker Guccier 2.0 on Twitter, who claimed to have hacked the DNC and is linked to Russian intelligence services.
5/11 Jeff Sessions
The US attorney general was forced to recuse himself from the Trump-Russia investigation after it was learned that he had lied about meeting with Russian Ambassador to the US Sergey Kislyak.
6/11 Carter Page
Mr Page is a former advisor to the Trump campaign and has a background working as an investment banker at Merrill Lynch. Mr Page met with Russian Ambassador to the US Sergey Kislyak during the 2016 Republican National Convention in Cleveland. Mr Page had invested in oil companies connected to Russia and had admitted that US Russia sanctions had hurt his bottom line.
7/11 Jeffrey "JD" Gorden
Mr Gordon met with Russian Ambassador to the US Sergey Kislyak during the 2016 Republian National Convention to discuss how the US and Russia could work together to combat Islamist extremism should then-Republican presidential candidate Donald Trump win the election. The meeting came days before a massive leak of DNC emails that has been connected to Russia.
8/11 Jared Kushner
Mr Kushner is President Donald Trump's son-in-law and a key adviser to the White House. He met with a Russian banker appointed by Russian President Vladimir Putin in December. Mr Kushner has said he did so in his role as an adviser to Mr Trump while the bank says he did so as a private developer. Mr Kushner has also volunteered to testify in the Senate about his role helping to arrange meetings between Trump advisers and Russian Ambassador to the US Sergey Kislyak.
9/11 James Comey
Mr Comey was fired from his post as head of the FBI by President Donald Trump. The timing of Mr Comey's firing raised questions around whether or not the FBI's investigation into the Trump campaign may have played a role in the decision.
10/11 Preet Bharara
Mr Bahara refused, alongside 46 other US district attorney's across the country, to resign once President Donald Trump took office after previous assurances from Mr Trump that he would keep his job. Mr Bahara had been heading up several investigations including one into one of President Donald Trump's favorite cable television channels Fox News. Several investigations would lead back to that district, too, including those into Mr Trump's campaign ties to Russia, and Mr Trump's assertion that Trump Tower was wiretapped on orders from his predecessor.
11/11 Sally Yates
Ms Yates, a former Deputy Attorney General, was running the Justice Department while President Donald Trump's pick for attorney general awaited confirmation. Ms Yates was later fired by Mr Trump from her temporary post over her refusal to implement Mr Trump's first travel ban. She had also warned the White House about potential ties former National Security Adviser Michael Flynn to Russia after discovering those ties during the FBI's investigation into the Trump campaign's connections to Russia.
What about impeachment?
“Asking FBI to drop an investigation is obstruction of justice,” Representative Ted Deutch, Democrat-Florida, wrote on Twitter on Tuesday. “Obstruction of justice is an impeachable offence.”
Both American 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 are 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.
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