The president’s actions may have been wildly inappropriate, but they are not enough to establish a strong criminal case.
“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.”
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.