RUTHFULLY YOURS

Before the angry mob of breathless Democrats gets too spun up and ahead of itself, the anti-Trumpers should calm down and try to absorb just how preposterous it is to suggest that President Trump may have committed a criminal offense by supposedly obstructing justice during the Russia/Michael Flynn investigation.

Consider for a moment what would have happened if Trump had placed an op-ed in a prominent newspaper, arguing that the investigation into his campaign and former national security adviser Flynn was misguided, a wasteful use of government resources, and that he thought it should stop. To do so would be foolish, but not criminal.

Similarly, what if the president paraded up and down Pennsylvania Avenue in front of the Justice Department with a bullhorn shouting, “Stop the Flynn investigation!”?

It would be unwise and inappropriate, but no one would say the president committed a crime. And he certainly could not be charged with obstruction of justice.

So, if the president’s wishes about an investigation can be loud and public, how is it possible that he violated the law by having a private conversation with a member of his own administration? How can it be that a bold position made in public would be legal, yet an arguably reserved position made in private is somehow considered criminal?

When it comes to obstructing justice before an audience, does size matter? I would love to hear from lawyers about this.

Anyway, everyone should also carefully consider the arguments made by constitutional scholar Alan Dershowitz. Dershowitz presented some compelling legal insight. “The president,” he writes, “is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.”

Former FBI director James B. Comey likewise confirmed during yesterday’s testimony that, “as a legal matter, [the] president is the head of the executive branch and could direct, in theory, we have important norms against this, but direct that anybody be investigated or anybody not be investigated. I think he has the legal authority because all of us ultimately report in the executive branch up to the president.” “Norms” are important, and Trump is not big on playing by the rules, but that does not mean he has broken a law.

Comey’s testimony should be enough to let this issue of criminality fade away, but the Democrats and their allies in the media are heavily invested in bringing the president down. Yesterday did not go as they wanted it to, and the Democrats’ rage won’t let them see the truth.

Again, Dershowitz argues, “it is important to put to rest the notion that there was anything criminal about the president exercising his constitutional power to fire Comey and to request — ‘hope’ — that he let go the investigation of General Flynn.”

Democrats will continue to lash out and contort Comey’s testimony, but the facts speak for themselves. President Trump has not asked anyone to lie, he has not prevented anyone from performing his or her legal obligations, and he has most certainly not obstructed justice.

Comey’s testimony was not flattering toward the president, but, as I wrote yesterday, it did more to help Trump than to hurt him. No matter how much the Democrats and mainstream media outlets try to spin a crime out of the straw that was Comey’s testimony, the facts just do not take us there.

The president still has the advantage of being innocent. If the Democrats want to impeach Trump, they will have to keep looking. I’m sure they will.

Anchor Insurance has announced that it will not offer insurance plans on the Ohio ObamaCare exchange next year, leaving 20 counties without any subsidized insurance options.

Regarding the Anthem departure, the New York Times breezily dismisses the fact that

Although [Anthem’s] departure would leave a small number of people — roughly 10,500 who live in about a fifth of the state’s counties — without an insurance carrier, the move was seized on by Republicans as more evidence that the markets are ‘collapsing’ under the Affordable Care Act.

Don’t you just love the satirical use of the quotations marks around the word collapsing indicating that such a charge is just utter nonsense?

Consequently, when Americans relate their horrific experiences under ObamaCare, they are met with insensitive, foul-mouthed responses and threats of violence for daring to expose the built-in problems of ObamaCare. Michelle Malkin relates how “millions of us who wanted our individual market health insurance plans left alone were branded selfish or liars for the past eight years. Our stories were stifled; our cancellation notices derided; our accounts of skyrocketing health insurance costs and diminished access to doctors mocked.” In fact, “[t]he partisan Beltway press shot down true stories of government-engineered pain and suffering, while hyping countless tall tales spun by the Obamacare Fable Factory.”

John Hayward asserts that Obama “needed to conceal how many people would lose their insurance under his plan. Millions of people lost their insurance plans because of the Affordable Care Act. Quite a few people have lost more than one insurance plan because of Obamacare-related disruptions to the market since 2010.” Moreover, “[i]t matters very much that Obamacare is absurdly expensive and wasteful. That’s real money being siphoned from our productive private economy and thrown around by the bureaucracy. A repeal plan that saves American taxpayers billions of dollars is a good thing and should be promoted to the people who pay all those taxes, insurance premiums, and deductibles as such.”

In addition, physician organizations now predict that in a mere 13 years, there will be a near-catastrophic shortage of primary care doctors and specialists in the United States. Kevin Campbell explains that:

Based on a new report from the Association of American Medical Colleges, it is expected that we will see a shortfall of nearly 100,000 doctors by the year 2030. A closer look at the predictions show that we will have a shortage of 40,000 primary care physicians, as well as a shortage of nearly 60,000 physicians in specialties such as allergy and immunology, cardiology, gastroenterology, and infectious disease. In general surgery, the report predicts that there will be 30,000 fewer surgeons than are needed to provide care to those who need it.

But, rest assured that “all federal employees could see a better rate on their health insurance premiums under a bill to overhaul the U.S. Postal Service, according to an analysis from the Congressional Budget Office.” Eric Katz reports that:

A key component of the 2017 Postal Service Reform Act would be the creation of a new health benefits program just for postal employees and retirees, while also requiring all eligible annuitants to enroll in Medicare as their primary provider. Federal workers remaining in their current Federal Employees Health Benefits plans would see their costs shrink, as removing postal employees — who are generally costlier to insure than the rest of the federal workforce — from their pools would decrease the overall expenses associated with their insurance. CBO did not estimate the savings FEHB enrollees would themselves receive, but it did predict the government’s portion of premium costs would decrease by $1.4 billion for federal retirees and $1.9 billion for current employees over 10 years.

Analysts also predicted premiums in the new system ‘for postal employees and annuitants would be lower than the FEHB premiums those people would face under current law.’ Again, CBO did not project savings for the individual, but said USPS would save $2.2 billion for current postal workers and $2.5 billion over 10 years under the postal-specific health care program.

If you’re looking for American ingenuity and technological prowess to help resolve the climate issues that face the world, the Paris Climate Pact is not for you. The pact is a voluntary agreement among countries including the world’s worst polluters (this is axiomatic, since only Nicaragua and Syria are not signatories, and thus far, chemical agents dropped on civilians have not been classed as “pollutants”). Nearly 200 countries are encouraged (not required) to make plans based on their own priorities and commitments to their own people – except the United States, it appears.

The goals of the pact are strikingly modest – to limit global warming to 2 degrees Celsius above pre-industrial levels – but the withdrawal of the United States by President Donald Trump was followed by denunciation and frenzied despair for the future of the planet. German chancellor Angela Merkel, along with the new president of France and the prime minister of Italy, announced, “We deem the momentum generated in Paris in December 2015 irreversible and we firmly believe the Paris Agreement cannot be renegotiated, since it is a vital instrument for our planet, societies, and economies.”

“Irreversible” and “vital” are heavy adjectives applied to theoretically voluntary choices.

Jean-Claude Juncker, the European Commission president; Donald Tusk, the European Council president; and Mrs. Merkel decried the abdication of American leadership. Junker said the U.S. wanted to “untie itself from international connections” – more heavy words for a president withdrawing from an agreement not ratified or even discussed by the U.S. Senate.

What the rest of the world says is less germane here than what the United States does. A dozen American states and more than 200 cities have committed themselves (or their constituents) to maintaining the principles and goals of the Paris pact. More than 1,000 companies and institutions, including more than a dozen Fortune 500 businesses, signed a statement joining them.

Whether they planned it this way or not (probably not), they have exercised a fascinating burst of American federalism. Federalism, defined as “the distribution of power in an organization – such as a government – between a central authority and the constituent units,” is how states and municipalities exercise their authority separate from the federal government. For decades, liberals have sought more federal power over states (abortion, redefining marriage, mandatory health insurance), while conservatives have argued for less (school choice, Medicaid, abortion).

Not this time.

In fact, the determination of state, local, and business leadership to forge ahead on standards for conservation, energy, and pollution control is an outstanding development that does not require the federal government and appears not to run afoul of federal law (unlike, for example, sanctuary cities). The question is not whether it is better to have clean air and water or not. The question is not whether to find better ways of managing waste and generating electricity or not finding them. There are only two questions:

Who will do the heavy lifting for what we all consider benefits? Certain states, cities and companies say they will, and more power to them, so to speak. American ingenuity and American capability will surely create better and smarter ways to live in the only atmosphere we have.
What constitutes the best use of American money in pursuit of those aims?

Technology doesn’t create itself, and the role of government and private investment choices looms large. The federal government has a poor track record of choosing investments – Solyndra, anyone? The market, from startups to Fortune 500 companies, is the better mechanism for emerging and adaptive technologies – Wayze (Israeli) and Amazon and Uber (American) come to mind.

Absence of a market or investment mechanism, or money for the sort of innovation at which America excels, is a major shortcoming of the Paris pact. Consider the construct, and pay attention to the words of the founding document that the Europeans are adamantly opposed to changing.

Former FBI Director James Comey, who claims President Trump ordered him to end an investigation into former National Security Advisor Mike Flynn’s ties to Russia, admitted he leaked his notes from a private conversation with Trump in hopes of spurring an investigation of the president himself.

This raises the question, Why isn’t Comey being investigated? He has proven himself to be a prolific liar who abused his power in the vein of J. Edgar Hoover but without Hoover’s competence.

For Comey, leaking was revenge for the humiliating, public way President Trump fired him. His leaking to the media of what amount to official FBI documents may itself be unlawful and may violate the terms of his employment as FBI director. He’s not the victim he paints himself as.

Comey’s comments came as he testified for hours before the Senate Intelligence Committee as part of a massive fishing expedition against the Trump administration that should never have been launched in the first place. (A transcript of Comey’s testimony is available here.)

Commentators were all over map in their evaluations of the political significance of the testimony.

It was a bad day for Trump, retired Judge Andrew Napolitano said on Fox News Channel. Interfering with a federal criminal investigation for a corrupt purpose would be obstruction of justice, he told Shepard Smith on Fox News Channel. Some of Comey’s testimony was damning, Napolitano added, particularly Comey’s statement that he understood Trump was seeking some kind of a quid pro quo.

In response to a question from Sen. Angus King (I-Me.), Comey said during the hearing that Trump’s “hope” that he would “drop” the investigation into Flynn’s connections to Russia reminded him of 12th century English King Henry II’s annoyance with Archbishop of Canterbury Thomas Becket.

The use of the word “hope,” Comey said, “rings in my ear as kind of, ‘will no one rid me of this meddlesome priest?'” A group of Henry’s followers interpreted the statement as an indication that he wanted Becket dead and they did the king’s will.

But this is weak sauce. It is extremely unlikely a criminal case would arise out of a president’s stated “hope” that a probe be ended, with no actual evidence to back it up. Besides, the ultra-manipulative Comey has already proven himself an unreliable witness possessed of a self-serving memory.

And even if President Trump did order Comey to make the probe into Flynn go away, the president is entitled to do such things.

Harvard Law professor emeritus Alan Dershowitz, a liberal Democrat, made the point that in his testimony yesterday,

Comey confirmed that under our Constitution, the president has the authority to direct the FBI to stop investigating any individual. I paraphrase, because the transcript is not yet available: the president can, in theory, decide who to investigate, who to stop investigating, who to prosecute and who not to prosecute. The president is the head of the unified executive branch of government, and the Justice Department and the FBI work under him and he may order them to do what he wishes.

Andrew C. McCarthy is a former federal prosecutor and a contributing editor at National Review.

James B. Comey’s testimony Thursday before the Senate Intelligence Committee will no doubt embolden those who believe we already know enough to conclude that President Trump obstructed justice by leaning on the then-FBI director to halt a criminal investigation of Michael Flynn. But nothing that Comey said alters the fact that this claim remains fatally flawed in two critical respects: It overlooks both a requirement for corrupt intent and the principle of executive discretion.

It is true that federal statutes criminalizing obstruction of the administration of law — including by agencies such as the FBI — cite not only actual interference with an investigation but attempts to do so as well. That is, the fact that the investigation of Flynn, a close Trump campaign adviser who would briefly serve as his national security adviser, was never actually shut down cuts against the case for obstruction, but it is not dispositive.But the arguments for presidential obstruction here tend to omit the statute’s most important word: “corruptly.” Not every form of interfering with an investigation, or even the closing down of an investigation, is felony obstruction. Only corrupt ones. Prosecutors must prove beyond a reasonable doubt that the accused not only acted intentionally but also with an awareness that his actions violated the law.The usual examples are straightforward: A public official is paid off to lean on the police to drop a case. Or an official acts to halt an investigation out of fear that a suspect will reveal wrongdoing by the official.

So, what would be a legitimate interference with an investigation?

This brings us to executive discretion. Every day, in FBI and U.S. attorney’s offices throughout the nation, agents and prosecutors decide to close investigations and decline prosecutions. Many of these cases are viable, but these executive-branch officials judge that the equities weigh against continuing the investigation or filing an indictment. They consider the seriousness of the offense and balance that against personal factors related to the suspect — criminal history, contributions to society, whether alternatives to criminal prosecution would be more appropriate, whether a criminal charge would be overkill because of other consequences the suspect has suffered, etc.

This is important because the president is the chief executive. We like to think of law enforcement as insulated from politics, and we certainly aspire to a politics that does not undermine the rule of law. In our system, however, it is simply not the case that law enforcement is independent of political leadership. The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates.

That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do.

James Comey’s much-anticipated testimony before the Senate Intelligence Committee largely confirmed what we knew already.

The former FBI director painted a deeply unflattering portrait of the president, as self-serving and dishonest. Comey said that he felt compelled to carefully document his interactions with President Trump because he did not believe that Trump would portray those interactions truthfully, if the need ever arose. Comey also had harsh words about the White House’s misleading explanation for his firing, initially portrayed as a reaction to his handling of the Hillary Clinton e-mail investigation. This character indictment cannot come as a surprise to anyone who has observed Donald Trump over the past two years.

Nonetheless, the legal case that Democrats are trying to mount against the president remains far-fetched. According to Comey, earlier this year President Trump asked Attorney General Jeff Sessions and adviser Jared Kushner to leave the room so he could talk privately with Comey. During the one-on-one, says Comey, the president said that he “hoped” the bureau could “let go” of its investigation into former NSA director Michael Flynn, the subject of an ongoing criminal inquiry. Democrats have suggested that this statement, taken in concert with Comey’s precipitous firing, constitutes an obstruction of justice. The former FBI director said that he understood the comment about the Flynn investigation as a “directive.”

There are gaping holes in this legal case. The president never followed up on his comment about the Flynn affair, and Comey continued the Flynn investigation (meaning he didn’t really consider it a directive); Trump did not object to investigations into other members of his team, even going so far as to say it would be “good to know” if his subordinates were engaged in wrongdoing; and the only explicit request Trump made of Comey regarding the Russia probe was to state publicly that Trump himself was not under investigation. In this connection, Comey affirmed that he did, in fact, tell the president that he was not personally under investigation — and on three occasions, as President Trump had previously claimed. (As we have noted, and as Comey reiterated in his testimony, the FBI’s inquiry pertaining to the Trump campaign was a counterintelligence, not a criminal, probe.

In other words, Comey’s testimony largely backed up what has seemed to be the case for a while: The president, hypersensitive to unfriendly press coverage, behaved irresponsibly by badgering his FBI director about an ongoing investigation and creating yet another situation in which James Comey would have to choose one side of a partisan divide — not unlike the situation into which he was put by Loretta Lynch during the Clinton e-mail investigation. Given his legal power over the FBI director — he has the authority to end any investigation, provided the motivation for doing so is not corrupt, and he has the authority to fire the FBI director at will — it is incumbent upon the president to avoid creating any impression of a conflict of interest. Donald Trump did not do that. However, this is still a far cry from obstruction of justice, as defined by law.

What was almost entirely missing from the hearing was the ostensible center of the Russia investigation — which is Russia itself. Indeed, the last several weeks have signaled a shift in focus of the Democrats and the media from alleged Russia collusion to alleged obstruction. In other words, it’s the supposed cover-up rather than the (so far as we can tell) non-crime.

Although Comey is getting hailed by all the great and good, his own behavior is hardly blameless. One interpretation of his extensive note-taking, coupled with his reluctance to tell his superiors of his concerns about Trump in real time, is that he was saving up ammunition for when it would serve his own purposes. His decision to leak his memos (written to contain no classified information, so they could be spread around as necessary) to the press, instead of taking them to Congress, in order to prompt the Justice Department to appoint a special counsel is a reminder that Comey is a practiced manipulator of the media and the Washington bureaucracy.

What if all the painful drama over Donald Trump and Mike Flynn and Hillary Clinton and Russians wasn’t really due to Donald Trump or Mike Flynn or Hillary Clinton or Russians? What if the national spectacle the country has endured comes down to one man, James Comey ?

It was certainly all about the former FBI director on Thursday, as he testified to the nation via the Senate Intelligence Committee. Mr. Comey didn’t disappoint. He already had submitted pages of testimony detailing his every second with President Trump, complete with recollections of moments he felt “strange” or “uneasy” or “awkward.” But on Thursday he went further, wowing the media with bold pronouncements: President Trump was a liar; the president fired him to undermine the Russia investigation; the president had directed him to back off Mr. Flynn.

Mostly he pronounced on what is—and is not—proper in any given situation: when handling investigations, interacting with the president, or releasing information. By the end, something had become clear. Mr. Comey was not merely a player in the past year’s palaver. He was the player.

It was Mr. Comey who botched the investigation of Mrs. Clinton by appropriating the authority to exonerate and excoriate her publicly in an inappropriate press event, and then by reopening the probe right before the election. This gave Mrs. Clinton’s supporters a reason to claim they’d been robbed, which in turn stoked the “resistance” that has overrun U.S. politics.

We now know it didn’t have to be this way. Mr. Comey explained that he had lost faith in then-Attorney General Loretta Lynch’s ability to handle the affair, in part because she had directed him to describe the probe in public as a “matter” rather than an “investigation.” That one of President Obama’s political appointees outright directed the head of the FBI to play down an investigation is far more scandalous than any accusation aired about Mr. Trump. Mr. Comey said it gave him a “queasy” feeling. But did he call on Ms. Lynch to recuse herself? Did he demand a special counsel? No. Mr. Comey instead complied with the request. Then he judged that the only proper way to clean up the mess was to flout all the normal FBI protocols. Vive la resistance.

It was Mr. Comey who launched an investigation into Russian meddling last July and expanded it to look for possible collusion with the Trump campaign. That may well have been warranted. Yet before the election his FBI had leaked this to the press, casting an aura of illegitimacy on a new president and feeding conspiracy theories based on, in Mr. Comey’s words, “nonsense” reporting.

Mr. Comey could have spared us this by simply stating, as he acknowledged Thursday, that Mr. Trump wasn’t under investigation. One could argue he had a duty to explain, given that he’d taken the unusual step of confirming the probe, and given the leaks from his FBI and the flood of fake news that resulted. But no. James Comey judged that (in this case, at least) it would be improper to speak out. So we’ve had all Russia all the time. CONTINUE AT SITE

James Comey’s first post-FBI appearance in front of the Senate on Thursday turned out to be a political anticlimax, with no major revelations about the alleged Trump-Russia nexus or the President’s supposed attempt to derail the investigation. But nearly three hours of testimony did expose the methods of the highly political former FBI director.

To wit, Mr. Comey is trying to have it both ways. He worked to leave the impression that Mr. Trump had committed a crime or at least an abuse of power, even as he abdicated his own obligations as a senior law-enforcement officer to report and deter such misconduct.

Mr. Comey confirmed that Mr. Trump never tried to block the FBI’s larger probe of potential Russian entanglement in the election and even encouraged the FBI, noting that “if some of my satellites did something wrong, it’d be good to find that out.” Despite this probative evidence, Mr. Comey claims that in an Oval Office meeting in February Mr. Trump importuned him to close the case on Michael Flynn, the National Security Adviser who had recently been fired for misleading the Vice President.

Mr. Trump, according to Mr. Comey, defended Mr. Flynn, saying “he is a good guy. I hope you can let this go.” Mr. Comey explained that “I took it as a direction to get rid of this investigation.”

But he wouldn’t answer when Senators asked if such a direction was illegal. “I don’t think it’s for me to say whether the conversation I had with the President was an effort to obstruct,” Mr. Comey said. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense.”

Mr. Comey also admitted that after he was fired he leaked his personal memos about his Trump conversations, via a cutout at Columbia Law School, “because I thought that might prompt the appointment of a special counsel.” So Mr. Comey triggers Robert Mueller’s new assignment and then tosses him responsibility while still intimating that Mr. Trump violated the law.

This legerdemain is an awfully convenient self-defense. The important question is whether Mr. Comey believed Mr. Trump was obstructing justice at the time, and Mr. Comey’s behavior then doesn’t confirm his Senate tale.

Mr. Trump had expressed the same sentiments about Mr. Flynn’s bona fides in public and on Twitter , so his preferences were no secret. But if Mr. Comey really believed Mr. Trump was trying to block the Flynn probe, then he had a legal duty to report Mr. Trump’s conduct to his Justice Department superiors or the White House counsel. Obstruction of justice—intentionally attempting to impede an investigation—is a crime.

Mr. Comey said that he was “so stunned” that he lacked “the presence of mind” even to tell Mr. Trump that his request was improper. But he was able to gain enough composure to write up the experience in the car after the meeting, and to discuss the meeting, by his own testimony, with his chief of staff, the FBI deputy director, the associate deputy director, the general counsel, the deputy director’s chief counsel and the head of the FBI office of national security. But he never informed Attorney General Jeff Sessions, the Deputy AG or any other supervisor.

This abdication is especially remarkable for someone as experienced in the corridors of power as Mr. Comey. This is a government veteran who served three Presidents in senior positions and in 2004 predrafted a letter of resignation as Acting Attorney General to threaten President Bush over wiretapping.

https://www.gatestoneinstitute.org/

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch James Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

In 1992, then President George Walker Bush pardoned Caspar Weinberger and five other individuals who had been indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, accusing Bush of stifling his ongoing investigation and suggesting that he may have done it to prevent Weinberger or the others from pointing the finger of blame at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.

This is what Walsh said:

“The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up.”

Yet President Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.

It is true that among the impeachment charges levelled against President Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.

It is against the background of this history and precedent that the statement of former FBI Director James must be considered. Comey himself acknowledged that,

“throughout history, some presidents have decided that because ‘problems’ come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.”

Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause. President Donald Trump also had the constitutional authority to order Comey to end the investigation of Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.

With these factors in mind, let’s turn to the Comey statement.

Former FBI Director James Comey’s written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that President Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.

The crucial conversation occurred in the Oval Office on February 14 between the President and the then director. According to Comey’s contemporaneous memo, the president expressed his opinion that General Flynn “is a good guy.” Comey replied: “He is a good guy.”

The President said the following: “I hope you can see your way clear to letting this thing go.”

Comey understood that to be a reference only to the Flynn investigation and not “the broader investigation into Russia or possible links to the campaign.”

Comey had already told the President that “we were not investigating him personally.”

Comey understood “the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”

Comey did not say he would “let this go,” and indeed he did not grant the president’s request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that “throughout history, some presidents have decided that because ‘problems’ come from the Department of Justice, they should try to hold the Department close.”

That is an understatement.

Throughout American history — from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.

It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.

In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the Attorney General are law enforcement officials who, by law, are independent of the Prime Minister.

But our constitution makes the Attorney General both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.

The president can, as a matter of constitutional law, direct the Attorney General, and his subordinate, the Director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

Assume, for argument’s sake, that the President had said the following to Comey: “You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.

The first President Bush pardoned Caspar Weinberger, his Secretary of Defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority

For the same reason President Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.

The Comey statement suggests that one reason the President fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump “repeatedly” told Comey to “get that fact out,” and he did not.

If that is true, it is certainly not an obstruction of justice.

Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded “you will get that (‘honest loyalty’) from me.”

Comey understood that he and the President may have understood that vague phrase — “honest loyalty” — differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. 
 Many Trump opponents were hoping that the Comey statement would provide smoking guns.

It has not.

Instead it has weakened an already weak case for obstruction of justice.

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey’s words and take Trump’s out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguards in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to “get” a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. All Americans who care about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it is Trump. Yesterday it was Clinton. Tomorrow it could be you.

Then-Director of the Federal Bureau of Investigation, James Comey, testifies in front of the Senate Judiciary Committee, May 3, 2017, in Washington, DC. (Photo by Eric Thayer/Getty Images)

Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Taking the Stand: My Life in t

I find it difficult to understand how legal experts can read former FBI director James Comey’s submitted testimony and conclude that it makes out a case of felony obstruction of an FBI investigation. That contention was ill-conceived before we saw Comey’s testimony (see, e.g., here, here, and here), and it is even weaker now.

As I’ve tried to explain before, there are two principles at play here. The first is corruption. Perhaps it would help to look at the relevant statute, Section 1505 of the federal penal code (Title 18). It states in relevant part (my italics):

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States [shall be guilty of a crime].

Much of the commentariat assumes than any interference in an investigation equals obstruction. It is simply not true. Criminal statutes do not contain idle words. The word “corruptly” states an essential element of the crime. It is the core of the mental state that prosecutors must prove beyond a reasonable doubt to establish an obstruction offense. This is a technical legal fact; it is not cavalier rhetoric — a word thrown around by a fired-up commentator in a media interview or a partisan lawmaker in a red-hot congressional debate.

As you can see, aside from acting “corruptly,” there are basically two other ways that the crime of obstructing the administration of law can be committed: by a threat or by use of force. Rather than blow by them with ellipses, I left them in the excerpt above so people would not wonder what I was omitting. But they clearly do not apply to our situation. Even on the most extravagant construction of President Trump’s February 14 plea to then-director Comey on Michael Flynn’s behalf — i.e., a vague, implied threat to fire Comey — no serious person is contending that Trump told Comey, in effect, “Do what I want, or else.”

I will also not bog us down in such technicalities as whether there was a “pending proceeding.” Let’s assume there was an active investigation that satisfies this requirement.

Thus, the question boils down to this: Did Trump corruptly influence or endeavor to influence the FBI’s administration of law?

To demonstrate that a person acted corruptly, it is not sufficient to show that he acted intentionally. The act must also be done with an awareness that the conduct in question violates the law. A political official could corruptly impede an investigation by, say, leaning on the police to drop a case because he’s been bribed by the main suspect. Or, if the political official had, say, been in a fraud conspiracy with the main suspect, he might lean on the police to pull the plug on the investigation to stop the suspect from revealing the official’s own culpability. In these instances, the official would be acting to undermine the investigation for a clearly unlawful purpose.

But if the official impeded or halted the investigation for a legitimate purpose, there could be no obstruction. This underscores the importance of the word corruptly. Not all acts to influence, impede, or outright halt an investigation violate the law; only corrupt ones.

So, what would be a legitimate reason to halt an investigation? This brings us to the second important principle: executive discretion.

It is not enough to say the president is the chief executive. In our system, he is the only executive with constitutional power. (“The executive Power shall be vested in a President of the United States of America” —Article II, Section 1.) Every other executive-branch officer is not just subordinate to the president. These inferior officers do not have their own power. The power they exercise is the president’s power. They are mere delegates.

These subordinate executive officials include FBI agents and federal prosecutors. Every day, throughout the United States, these officials exercise executive discretion to shut down investigations or decline prosecutions. Very often, these are cases in which crimes have been committed and a prosecution would be viable.

In our system, it is not mandatory that a viable case be indicted and prosecuted. Instead, in each case, agents and prosecutors weigh the equities: the seriousness of the crime, including the harm to any victims, versus personal considerations relevant to the suspect — his history of criminality or positive contribution to society, whether other negative consequences have befallen him such that prosecution would be overkill, whether there are means other than the criminal law (such as civil suits or community service) that would adequately address the wrongdoing, etc. The Justice Department (of which the FBI is a component) decides, based on the totality of the circumstances, whether further investigation and prosecution are warranted.

In this, again, they are exercising the president’s power. In light of the fact that the president is their superior and the power is his, the president cannot have less discretion than a United States attorney or an FBI supervisor does in weighing the equities and deciding that a case should not be pursued. Charging discretion, moreover, is like the pardon power in this regard: It is a power of the executive that is unreviewable by the courts.

Here is Comey’s recollecton of the president’s remarks about Flynn on February 14:

The President began by saying, “I want to talk about Mike Flynn.” Flynn had resigned the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify. . . .

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”

The former FBI director goes on to say he understood that the “this” the president wanted him to “let go” referred to “any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.” As I discussed last night, the FBI is investigating Flynn for allegedly making untrue statements to agents who interrogated him about his communications with ambassador Sergey Kislyak. Making false statements in that context is a felony.

So, what was the president saying? Basically, that the subject matter of the investigation is not the crime of the century, particularly given that Flynn “hadn’t done anything wrong in speaking with the Russians” — which is true: Flynn was the incoming national-security adviser; establishing relationships with foreign counterparts was among his roles in the Trump transition; and the recordings of his conversations showed he had not given Kislyak any commitments to drop sanctions imposed by President Obama.

Also, Flynn “is a good guy” — a combat veteran who has served his country with courage and distinction. Moreover, Flynn had already “been through a lot” — he had been publicly humiliated by his firing, and his professional prospects had significantly dimmed in light of the public reporting that he had been either incompetent or disingenuous in his briefing of Vice President Pence on the Kislyak conversations.

Which is to say that Trump was doing exactly what prosecutors and agents do: looking at the totality of the circumstances and opining that prosecution would be overkill.

Now, you may disagree with his calculus. But it cannot seriously be said that the calculus is not a legitimate exercise of prosecutorial discretion. Those who claim it is illegitimate political interference in law enforcement misunderstand our constitutional system (and have apparently never heard of the pardon power, in which presidents routinely intrude on law enforcement).

The FBI and Justice Department are not an independent branch of government. They are subordinate to the president, and he gets to prod and even order them to do things. We hope there is not an excess of political interference with the day-to-day enforcement of the laws because that would undermine public confidence in the system on which the rule of law depends — and thus it would probably be impeachable. But nevertheless, the president absolutely has the authority to exercise prosecutorial discretion.

A legitimate exercise of executive power cannot be corrupt. A president does not corruptly impede an investigation by deciding that the equities weigh in favor of halting it. That is a decision the president gets to make.

Finally, it bears emphasizing that it is not the decision Trump made. He told Comey what he hoped would happen, and why. But he did not order Comey to halt the investigation. Plus, Comey did not halt the investigation; it is continuing to this day. Moreover, Comey acknowledges that Trump was speaking narrowly about Flynn. The president did not ask him to shut down the broader “Russia investigation” — meaning the president was not pretextually lobbying for Flynn in an attempt to make his own potential problems disappear.

You can disagree with Trump’s reasoning. You can conclude that browbeating Comey in this fashion was inappropriate. But this clearly was not obstruction — which is no doubt why then-director Comey did not resign or otherwise treat the matter as if he’d just witnessed a crime.

— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.