What exactly is Special Counsel Robert Mueller investigating? The basis in law—regulation, actually—for Mr. Mueller’s appointment is a finding by the deputy attorney general that “criminal investigation of a person or matter is warranted.”
According to some reports, the possible crime is obstruction of justice. The relevant criminal statute provides that “whoever corruptly . . . influences, obstructs or impedes or endeavors [to do so], the due and proper administration of the law under which any pending proceeding is being had,” is guilty of a crime. The key word is “corruptly.”
President Trump’s critics describe two of his actions as constituting possible obstruction. One is an alleged request to then-FBI Director James Comey that he go easy on former national security adviser Michael Flynn, who was under investigation for his dealings with Russia and possible false statements to investigators about them. According to Mr. Comey, Mr. Trump told him, “I hope you can see your way clear to letting this go, to letting Flynn go,” because “he is a good guy.”
An obstruction charge based on that act would face two hurdles. One is that the decision whether to charge Mr. Flynn was not Mr. Comey’s. As FBI director, his job was to supervise the investigation. It is up to prosecutors to decide whether charges were justified. The president’s confusion over the limits of Mr. Comey’s authority may be understandable. Mr. Comey’s overstepping of his authority last year, when he announced that no charges were warranted against Hillary Clinton, might have misled Mr. Trump about the actual scope of Mr. Comey’s authority. Nonetheless, the president’s confusion could not have conferred authority on Mr. Comey.
The other is the statutory requirement that a president have acted “corruptly.” In Arthur Andersen LLP v. U.S. (2005), the U.S. Supreme Court accepted the following definition: that the act be done “knowingly and dishonestly, with the specific intent to subvert or undermine the integrity” of a proceeding. Taking a prospective defendant’s character into account when deciding whether to charge him—as Mr. Comey says Mr. Trump asked him to do—is a routine exercise of prosecutorial discretion. It is hard to imagine that a properly instructed jury could decide that a single such request constituted acting “corruptly”—particularly when, according to Mr. Comey, Mr. Trump also told him to pursue evidence of criminality against any of the president’s “ ‘satellite’ associates.”
The second act said to carry the seed of obstruction is the firing of Mr. Comey as FBI director. The president certainly had the authority; it is his motive that his critics question. A memorandum to the president, from the deputy attorney general and endorsed by the attorney general, presented sufficient grounds for the firing: Mr. Comey’s usurpation of the prosecutor’s role in the Clinton matter and his improper public disclosure of information unfavorable to Mrs. Clinton. But the president’s detractors have raised questions about the timing—about 3½ months into the president’s term. They have also cited the president’s statement to Russian diplomats days afterward that the firing had eased the pressure on him.