Leading up to former FBI director James Comey’s highly anticipated public testimony Thursday, one phrase is on the minds of just about everyone in official Washington: obstruction of justice.
Specifically, did President Trump commit obstruction of justice when he reportedly urged Comey to drop the investigation into his former national security adviser, Michael Flynn? Or when he asked for Comey’s loyalty? Or when he proceeded to fire Comey in the midst of the Russia probes?
There is plenty of disagreement in the legal community on this issue, particularly because obstruction of justice is a difficult crime to prove. But most agree it’s too early to say with certainty whether Trump crossed that line, even if there is sufficient evidence to at least begin building a case.
That’s where Comey’s testimony before the Senate Intelligence Committee comes in. When Comey arrives on Capitol Hill on Thursday morning for his first public appearance since his firing, he is expected to address his conversations with Trump and the circumstances surrounding his exit from the FBI, which is investigating the Russian government’s interference in the 2016 election and possible ties to Trump’s associates.
Just how much new information Comey provides remains to be seen. But even by only confirming some the details that have already been reported by various media outlets in recent weeks, Comey can provide a clearer picture of whether obstruction of justice may have occurred.
“It’s hard to overemphasize the extent to which things can really take on a much deeper texture when you are actually hearing the witness,” said Samuel Buell, a former federal prosecutor who is now a criminal law professor at Duke University. “Even if no new facts come out on Thursday of any great import, we’re going to have a much better feel for this thing after his testimony.”
While there are several statutes that deal with obstruction of justice, these cases all usually deal with three key elements. The first is extremely broad: the action itself. Some defenders of Trump have pointed out that the president possesses the authority to hire and fire individuals as he sees fit, which is true. But even a legal act could qualify as an attempt to obstruct justice.
That’s why the second element is arguably the most important: intent. The White House has been inconsistent in its reasoning for Comey’s dismissal. Initially, the official line was that Trump acted based on Deputy Attorney General Rod Rosenstein’s recommendation. But in an interview with NBC News, Trump said he had made up his mind about Comey before Rosenstein’s recommendation, and even cited the Russia investigation.
Buell said the shifting stories may weaken, but wouldn’t be fatal to Trump’s case in the event of a criminal investigation, since the comments were made outside the courtroom. Hearing Comey’s perspective should help clarify the course of events that led to his firing, although ABC News reported that he is not expected to accuse the president of obstructing justice.
“It’s very rare that there’s any one piece of evidence in a case like this that would be decisive. And so Comey’s testimony is a big piece of that,” Buell said. “Every little detail can make a difference.”
Still, there are some who don’t need to see any more evidence to prove Trump’s intent. Laurence Tribe, a constitutional-law professor at Harvard University, has argued that demanding loyalty from Comey, and implying that it was necessary to retain his job, amounts to bribery, which violates one of the statutes pertaining to obstruction of justice.
“To say that this does not in itself rise to the level of ‘obstruction of justice’ is to empty that concept of all meaning,” Tribe wrote in a recent op-ed for The Washington Post.
Then there’s the third and final element: the context. No matter how questionable his actions were, did Trump obstruct a concrete legal proceeding? Past court rulings have stated that FBI investigations do not qualify in these cases. Typically, the stronger cases in this area are tied to concrete criminal or grand jury proceedings. CNN reported last month that federal prosecutors had issued grand jury subpoenas to Flynn’s associates, but it’s unclear whether Trump knew about this or tried to specifically interfere with the process.
“The problem has not been in establishing a narrative of obstruction. … The problem has been the context,” said Jonathan Turley, a criminal-defense attorney and law professor at George Washington University. “The court would still have to accept that at that stage Trump was obstructing something along those lines.”
He added that the White House should be more concerned about Trump or his staff providing incorrect or misleading information to Special Counsel Robert Mueller down the road. “Those interviews are the greatest threat,” Turley said.
But that third element of obstruction cases can also apply to future legal proceedings. So the argument could be made that Trump urged Comey to stop investigating Flynn and fired him in an attempt to prevent a criminal investigation later on.
Either way, Buell thinks that aspect won’t be a major focus of a potential obstruction-of-justice probe, or Comey’s hearing Thursday.
“Most of the action on these facts has been in discussion so far, and I think will continue to be, the question of mental state,” Buell said. “That is, did the president act with an improper purpose to obstruct justice?”
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