RUTHFULLY YOURS

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.

Dan and Rich have extensively discussed former FBI director James Comey’s written submission of testimony. For now, I would just like to add a point about former national security adviser Michael Flynn — the investigation of whom is the subject of the “obstruction” debate.

We learn from Comey’s testimony that the thrust of the criminal investigation of Flynn involves false statements that he is suspected of making to the FBI, regarding his communications with Russian ambassador Sergey Kislyak. In discussing his February 14 meeting with the president, Comey avers (my italics):

I had 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. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls.

With a grand jury considering evidence in Virginia, there has been speculation that Flynn’s potential criminal problems arise out of the security firm he started after retiring from the military: Did he fail to disclose to the Defense Department speaking fees he collected in a 2015 trip to Russia? Did he fail to register as a foreign agent with the Justice Department for work that benefitted the government of Turkey?

It is now clear that, while these transactions are no doubt being scrutinized, what’s driving the train is a potential false statements charge, under Section 1001 of the federal penal code (a felony punishable by up to five years’ imprisonment).

On that, I hate to say I told you so.

Back in February, I penned a column asking, “Why Was the FBI Investigating General Flynn?” The upshot was that there appeared to be no reason to investigate Flynn as a criminal suspect, and, in particular, to have subjected him to an FBI interrogation after Flynn’s conversations Kislyak. Because Kislyak was being surveilled as a foreign agent of Russia, the FBI already had recordings of these conversations. It was perfectly appropriate for Flynn, as Trump’s prospective national security adviser and a top official in the Trump transition, to be engaging in conversations with foreign counterparts — the point of the transition is to allow the new administration to hit the ground running. Moreover, as an unlawful classified leak to the New York Times made clear, the FBI had determined there was no corrupt quid pro quo in Flynn’s discussion with Kislyak — Obama advisers, according to the Times, pressed the Bureau on whether Flynn made any assurances to Kislyak about withdrawing the sanctions that President Obama had imposed, and the Bureau said no.

Yet, Flynn was treated as if he were a suspect. So hot was the Obama Justice Department to make a case on him, it apparently even considered charging him with a violation of the Logan Act. That is a purported prohibition against freelance engagement in foreign policy by American citizens. Its constitutionality is so dubious that it has never been successfully prosecuted (and almost never invoked) in the two centuries it has been on the books.

The question here was whether the Justice Department wanted Flynn interrogated in the hope that he would not truthfully describe the conversation with Kislyak. Since they had a recording, any inaccuracy could then be charged as a false statement — a classic “process crime.”

I subsequently put it this way:

The government is not supposed to use its FISA surveillance authority to make criminal cases, yet it seems to have been more than willing to ignore that impediment to try to make a case on Flynn. As I’ve previously detailed, the Times report elaborates that the FBI did not just record Flynn’s communications and consult “Obama advisers” on the possibility of charging Flynn – a White House intrusion into law-enforcement that the media would have turned into Watergate if done by a Republican administration. The FBI is also said to have “grilled” Flynn about his communications with Kislyak. Given that the FBI recorded the communications and obviously doesn’t need Flynn to tell them what was said, any competent lawyer would have to wonder whether they “grilled” Flynn in the hope that he would lie about what was said, opening him up to a charge of false statements to investigators – a felony.

Is this what happened? It is a question worth pursuing, especially given that the Justice Department and FBI went out of their way not to make a case on Hillary Clinton and her subordinates, who mishandled classified information and destroyed government files.

To be clear, I do not endorse the misleading of investigating agents. We live in a country where we are privileged to refuse to speak to the police. If you choose to speak, you are obliged to be truthful. I have no idea whether Flynn lied or not; perhaps we will learn at some point.

Nevertheless, law-enforcement is not supposed to subject a person to the processes of a criminal investigation absent a good faith belief that a crime may have occurred. It is abusive to interrogate people, not to uncover a reasonably suspected crime, but to create a new crime.

It is worth asking again: Why was General Flynn, the incoming national security adviser, “grilled” by FBI agents?

It is hard to understand why this news is news at all, but ABC News reported Tuesday evening that former FBI director James Comey will not accuse President Donald Trump of obstructing an FBI investigation. Comey is scheduled to testify before the Senate intelligence committee on Thursday.

Comey is a decorated former prosecutor who served at the highest echelons of the Bush Justice Department before becoming the nation’s top federal cop under President Obama. That is why the news that he will not accuse the president of obstruction should be no news. Though better informed than virtually anyone in the country about what constitutes an obstruction crime, Comey took no action consistent with a belief that he had witnessed one during his February 14 meeting with Trump. He did not resign, and having known him for 30 years, I am quite confident he’d have done just that; he would neither countenance such a thing, nor permit himself to become enmeshed in it. Nor did the then-director report either the commission of a crime or being solicited to participate in a criminal scheme—not to his superiors at the Justice Department, and not down his chain of command at the FBI, as internal regulations and protocols would have required.

Moreover, when later asked, in May 3 congressional testimony, whether he’d ever been directed to stop an investigation for political reasons, rather than law-enforcement-related ones, he said he had not. To be sure, the line of questioning at the Senate hearing specifically related to orders from his Justice Department superiors, not from a president. But Jim Comey would not have sliced it so finely. If he had received such a directive from the White House, which any seasoned law-enforcement official would find more disturbing than an order from Main Justice, he would have said so.

The reality, under our law, is that the president—not the FBI director, not the attorney general—is the chief executive law-enforcement official in the country. When FBI supervisors and United States attorneys exercise executive discretion to shut down investigations and prosecutions—something that happens every day, throughout the country—they are exercising the president’s power, not their own.

Understand: None of this means Comey believed it was appropriate for President Trump to lobby him on behalf of Michael Flynn, the national security adviser Trump had just fired. Undoubtedly, he found it highly inappropriate. All of us who have had an occasionally overbearing boss have experienced discomfort, even anxiety, when that trait is turned on us.

No one appreciates feeling manipulated.

The president has the constitutional authority to order that an investigation be closed. Under the Constitution, all of the power in the executive branch is vested in a single official—the president of the United States. Every other executive branch officer is a subordinate, an inferior officer who is delegated to exercise the president’s power at the president’s pleasure. The FBI is not a separate branch of government, granted immunity from direction by political superiors. Nor, as important as it has become, is the FBI a necessary agency of government—i.e., there is no provision for it in the Constitution, and the nation managed to survive quite nicely in the nearly century-and-a-half of constitutional governance before the Bureau was created in 1935.

The reality, under our law, is that the president—not the FBI director, not the attorney general—is the chief executive law-enforcement official in the country. When FBI supervisors and United States attorneys exercise executive discretion to shut down investigations and prosecutions—something that happens every day, throughout the country—they are exercising the president’s power, not their own. Obviously, the president can have no less discretion in this realm than his subordinates do.

Thus, as a matter of constitutional law, the president has as much unilateral power to shut down an investigation as he does to issue a pardon to someone who has been convicted after an investigation, or to commute the sentence of a convicted federal prisoner. The exercise of these powers is unreviewable by the courts. If they are heinously abused, the remedy is for Congress to impeach the president, not for the president’s judgment to be disputed in a judicial proceeding.

Comey knows all this. But he also knows that Trump did not want to be seen as the decision maker. The president did not want to use his own indisputable power to shut down any investigation of Flynn. He wanted Comey to decide to shut the investigation down. He wanted the public to perceive that the FBI, the professional investigators, had determined there was no merit in any potential prosecution of Flynn. No doubt, he hoped Comey would arrive at that determination on his own, but the president was not above a nudge in the desired direction.

Sound familiar? It should, because it is what happened in the Hillary Clinton emails probe.

Comey had to know this. He also had to know that the Obama Justice Department, headed by Loretta Lynch (who had been elevated to public importance when Mrs. Clinton’s husband, President Clinton, appointed her to a coveted U.S. attorney’s position in New York), was never going to authorize an indictment of Hillary Clinton.

President Obama did not direct the FBI and the Justice Department to shut the investigation down. But he did make it known that he did not want his former secretary-of-state to be prosecuted. The then-president, a Harvard-educated lawyer, asserted for all the world, including his subordinates, to hear: He did not believe Clinton should be indicted for mishandling classified information in the absence of evidence that she intended to harm the United States – notwithstanding that there is no such intent requirement in the relevant criminal statute.

Obama could have ordered the investigation to be closed. But he did not want it to appear that he had put his political thumb on the scales of justice. He wanted it to appear that the FBI had done a thorough investigation at the end of which Mrs. Clinton was cleared. Comey had to know this. He also had to know that the Obama Justice Department, headed by Loretta Lynch (who had been elevated to public importance when Mrs. Clinton’s husband, President Clinton, appointed her to a coveted U.S. attorney’s position in New York), was never going to authorize an indictment of Hillary Clinton.

These forces—Obama and Lynch—had guaranteed the outcome. Yet it was the FBI that was being manipulated into the position of excusing Clinton’s inexcusable conduct. The Bureau’s prestige was being put into the service of her political campaign.

We all know how Comey reacted to that scenario.

The then-director’s recommendation against indicting Mrs. Clinton is overrated—it was not his call to make, and if he had made a different recommendation it would have been rejected by Lynch and Obama. And regardless of the criticism of his legal analysis voiced by me and other commentators, let’s stipulate that Comey truly believes that there was insufficient evidence of criminal intent to charge Clinton. The salient point is that he was not going to allow himself or his Bureau to be portrayed as endorsing Clinton’s cavalier mishandling of top-secret information, her destruction of government documents, and the culture of disregard for national security exhibited by the State Department during her stewardship.

I have not understood why commentators were suggesting that the former director would accuse the man who fired him of committing a crime. He knows President Trump did not commit a crime. He knows, as any experienced prosecutor knows, that putting not-so-subtle pressure on a subordinate does not arise to felony obstruction.

Yes, Mrs. Clinton was not indicted. But Comey made damn sure the country understood that the FBI had done its job, and that it did not approve of the behavior its thorough investigation turned up. He did it by simply describing her inappropriate conduct in just-the-facts-ma’am fashion. Short of having to shut down her campaign, it is hard to see how Clinton could have been more damaged politically if Comey had publicly accused her of committing a crime.

So see, this is not Comey’s first rodeo.

I have not understood why commentators were suggesting that the former director would accuse the man who fired him of committing a crime. He knows President Trump did not commit a crime. He knows, as any experienced prosecutor knows, that putting not-so-subtle pressure on a subordinate does not arise to felony obstruction. But I’m betting that Comey’s objection has never been that the president violated the law. What he objects to is his sense that the FBI was being put in the service of a president’s political desires – i.e., his sense that he and the Bureau were being prodded to do the heavy-lifting for a president who was unwilling to take the political heat for shutting down an investigation of a political ally.

The then-FBI director made life plenty unpleasant for President Obama and Mrs. Clinton when they put him in that position. I expect he will do the same for President Trump . . . without ever accusing him of committing a crime.

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.