No case for obstruction from hyper-hyped Comey hearing

Former FBI Director James Comey takes his seat after being sworn in during a Senate Intelligence Committee hearing on Thursday.

This week’s hyper-hyped hearings before the Senate Intelligence Committee had two surprise endings: Donald Trump did not commit obstruction of justice, not even close, and the president was right to fire FBI Director Jim Comey.

The hearing focused on Comey’s allegation that at a Feb. 14 White House meeting, Trump said of the FBI investigation into his former national security adviser, Michael T. Flynn:  “I hope you can see your way clear to letting this go … he is a good guy.”  Comey only agreed that Flynn “…is a good guy.”

Comey testified on Thursday that he was “stunned” by Trump’s request, and that it would be up to independent counsel Robert Mueller to decide if it amounted to obstruction of justice. But what Comey did not do reveals more than what he did.

Did Comey report Trump’s comment to Attorney General Jeff Sessions or any other federal prosecutors as a possible obstruction of justice?  No. Did the FBI director warn Trump that his comment was inappropriate and possibly illegal? No.

Instead, Comey recorded Trump’s comment in an unclassified memo and kept it “very closely held” within senior FBI leadership. It would become leverage, a la J. Edgar Hoover, if Trump should ever try to fire Comey.

For decades, Hoover had used his secret files of tasty tidbits and rampant rumors on political figures to manipulate each of the presidents he served, from FDR to Nixon. Hoover implicitly threatened that firing him would have a high political price. Not one of the eight presidents dared to find out how high.

Comey copied yet another of Hoover’s tactics during his time as director of the FBI. In Thursday’s hearings, he admitted to leaking another of his memos to the media in the hopes of forcing the appointment of a special prosecutor. The FBI director has the responsibility to investigate and stop leaks of sensitive government information, not spout like a Philly fire hydrant in July.

Comey’s ham-handed handling of the Hillary Clinton email probes likely convinced the president that he could be fired without creating a Democratic firestorm. And while Comey’s firing did trigger knee-jerk charges of obstruction of justice, and his wish for the appointment of an independent counsel, there are four reasons why the Trump-Comey episode does not meet the legal elements of obstruction of justice.

First, take Comey’s memo itself. Instead of evidence of a crime, it is the opposite. If Comey believed that he had personally witnessed an effort by Trump to obstruct justice, he should have done something. Trump’s comment, which Comey described as “a very disturbing thing, very concerning,” did not even merit a preliminary investigation after Comey witnessed it first-hand.

Second, the Supreme Court narrowly construes obstruction of justice. A threshold requirement is to prove a specific intent to obstruct justice. Trump’s comment to Comey about the Flynn investigation, which clearly acknowledges the FBI’s power to make the final determination, falls far short. Comey did not describe any other actions that would support an obstruction charge. He has no evidence that Trump destroyed, concealed, or tampered with evidence, or that he ordered witnesses to lie, or that he pressured any officials to stop their investigations. Trump did not discuss the broader investigation into Russian interference with our elections. Indeed, Comey’s testimony establishes that Trump actually welcomed an FBI investigation into his “satellite associates.”

Third, the broadest federal obstruction statute, 18 U.S.C. 1503, applies only to interference with judicial proceedings, not investigations.  While Flynn’s conduct eventually became the subject of a grand jury probe, there is no evidence that any such judicial proceeding existed when Trump made his comment. The hearings also confirmed that the FBI was not targeting Trump personally — again, making it difficult to claim he was obstructing an investigation that did not exist.

Finally, any prosecution would fall into an evidentiary black hole. The Trump-Comey exchange about Flynn boils down to an unprovable “he said, he said” dispute, with no independent corroborative evidence.

Most importantly, Comey conceded that “a president can fire an FBI director for any reason, or for no reason at all.” The president’s exercise of his unquestioned constitutional power to fire the FBI director reveals the fundamental flaw in the cries of obstruction of justice.

As the Supreme Court reminded us in the case upholding the independent counsel law, Morrison v. Olson, the Constitution imposes on the president “the obligation to ensure the faithful execution of the laws.” Trump, like all presidents, has the authority to decide what cases merit the resources of investigation and even prosecution. He could simply have ordered Comey to drop the Flynn case because it would waste federal time and money. Such an executive decision would not constitute an obstruction of justice, just the legitimate exercise of the president’s constitutional power.

Trump’s constitutional power goes even further. Article II gives the president “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” In Federalist 74, Alexander Hamilton explained the need for a pardon power: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” If Trump believed that the costs of Flynn’s investigation grossly outweighed any harm from the offense, he could simply issue a pardon — effectively ending the prosecution.

The president’s constitutional authorities to order an end to any prosecution or to issue pardons freely show that an obstruction charge makes little sense. Trump did not need to obstruct justice because he could simply have terminated the Flynn and Russia investigations.

Trump must still learn that government depends on appropriate process and careful decision-making because it is a public trust designed to serve the Constitution and, ultimately, the American people, not a profit-making business. But misunderstanding the differences between the two does not make for a federal crime.

John Yoo is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a former Bush Justice Department official.
David Marston was a U.S. attorney in Philadelphia, and recently retired from private practice.

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