The legal fact is that the Comey testimony does not establish a strong case for obstruction. Talking like Tony Soprano does not make you Tony Soprano, or even a criminal.
The release of former FBI director James Comey’s testimony on Wednesday was received with the same breathless reactions that have long characterized coverage of the Russian investigation. CNN ran comments that the Comey testimony was nothing short of the Watergate tapes. The desire for some indictable or impeachable offense by President Trump has distorted the legal analysis to an alarming degree. Analysts seem far too thrilled by the possibility of a crime by Trump. The legal fact is that Comey’s testimony does not establish a prima facie — or even a strong — case for obstruction.
It is certainly true that if Trump made these comments, his conduct is wildly inappropriate. However, talking like Tony Soprano does not make you Tony Soprano. Trump is not the first president to express dissatisfaction with an investigation by the Justice Department. Former president Bill Clinton made clear his own dissatisfaction with the investigations of his administration under then-Attorney General Janet Reno. It is no surprise that Trump wanted to see these investigations end. Indeed, he had a virtual hashtag to that effect.
The crime of obstruction of justice has not been defined as broadly as suggested by commentators. While there are a couple of courts with more expansive interpretations, the crime is generally linked to obstructing a pending proceeding as opposed to an investigation. Most courts have rejected the application of obstruction provisions to mere investigations. The manual used by federal prosecutors makes that same distinction. Even if a prosecutor was able to extend the definition of obstruction, there would remain the need to show that Trump sought to “corruptly” influence the investigation. Trump telling Comey that Michael Flynn is “ a good guy, ” and that he hoped Comey would let the matter drop is hardly a “cancer, ” let alone a crime, growing on the presidency.
Flynn had just resigned the day before Trump allegedly asked Comey whether he could now drop the investigation of Flynn. Trump had been told by Comey that he is not under investigation (three alleged confirmations by Comey that are equally inappropriate) . Trump could say he felt Flynn had suffered enough. For a defense lawyer, a charge of obstruction on these facts would be a target-rich environment.
The mere fact that Trump asked to speak to Comey alone would not implicate the president in obstruction. Trump could argue that he sought to exclude Attorney General Jeff Sessions and others who were facing calls for recusal in the investigation. He could claim that he viewed this as a personal inquiry on behalf of a friend. He was, of course, wrong. Dead wrong in asking such a grossly improper question. However, to treat the desire of a private conversation as inescapable evidence of obstruction is to deny the obvious defenses in the case.
In the end, a prosecutor should never seek to indict a president absent a lead-pipe cinch of a case. This is no lead-pipe cinch. Of course, there is also the problem of actually indicting a sitting president if there was a crime and evidence to fit it. Many academics believe that a sitting president cannot be indicted. It remains an open question. After all, judges have faced indictment before impeachments. Yet, the president remains the head of the executive branch handling such prosecutions.
The proper course is for a president to be impeached and removed before any prosecution. It is no gift to a president. Impeachments are not subject to the rules of evidence or even the criminal code. Presidents can face a much broader array of evidentiary demands with far less protection under due process rules. A president can also be impeached for acts that are not technically crimes. Abuse of office is a classic example. However, analogies to Watergate show little understanding of those articles of impeachment. The first article against President Nixon was an obstruction allegation, but it was expressly linked to actual and serious crimes, including the criminal break-in at the Watergate. The article specifically listed an array of personal actions taken by Nixon and his subordinates to procure false statements, obstruct investigators, and “to conceal the existence and scope of other unlawful covert activities.”
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Ironically, those who want a criminal charge on this record are committing the very offense that they accuse Trump of committing: disregarding the law to achieve their desired goal. It would be a highly dangerous interpretation to allow obstruction charges at this stage. If prosecutors can charge people at the investigation stage of cases, a wide array of comments or conduct could be criminalized. It is quite common to have such issues arise early in criminal cases. Courts have limited the crime precisely to avoid this type of open-ended crime where prosecutors could threaten potential witnesses with charges unless they cooperated.
We do not indict or impeach people for being boorish or clueless … or simply being Donald Trump.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter @JonathanTurley.
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Christopher Wray is a superior pick to the many pols under consideration: Our view
After considering some wildly inappropriate choices for FBI director, President Trump on Wednesday settled on Christopher Wray, a former federal prosecutor and current defense lawyer.
Given that Trump had threatened to be the first president to nominate a politician to the post, this latest move should prompt considerable sighs of relief.
After last month’s abrupt firing of FBI chief James Comey, who at the time of his ouster was investigating Russia’s ties to the Trump campaign, a political appointment would have further intensified questions about whether the president was trying to obstruct a criminal inquiry.
Wray, 50, a former head of the criminal division at the Justice Department and member of the task force that prosecuted fraudulent accounting at Enron, has the type of background that equips him to become an FBI director.
Without question he is a superior pick to the many pols who had been under consideration at one time or another. These included Rep. Trey Gowdy, R-S. C., a partisan whose highly politicized inquiry into the Benghazi tragedy was a national embarrassment. Those under consideration also included more respected figures such as former representative Mike Rogers, R-Mich., and former senator Joe Lieberman, I-Conn.
A career law enforcement official raises fewer questions while being better equipped to face the complex array of threats present in the world today, including terrorism and cyberattacks.
At first blush, Wray would appear to fit the bill. He has never run for office and has had an impressive career that checks all of the appropriate boxes.
One area, however, needs to be thoroughly explored during his confirmation hearings for the 10-year term: Wray’s law firm clients, especially New Jersey Gov. Chris Christie in the so-called Bridgegate scandal.
As Christie was an early backer of Trump, once Christie’s own presidential bid foundered, the Wray appointment poses the question of whether Trump sees him as a potential ally. More important, it sparks the question of how Wray sees Trump.
Given Comey’s testimony that Trump sought “loyalty, ” it’s vital that Wray view his new clients as the Constitution and the American people — not the president who chose him.
USA TODAY’s editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.
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