Here’s Why Trump Didn’t Obstruct Justice

Former FBI Director James Comey was finally given a public forum in which he could air his grievances about President Trump. During his testimony in front of the Senate Intelligence Committee, Comey expressed discomfort in his interactions with President Trump, particularly during an Oval Office conversation about former National Security Advisor Michael Flynn. After the hearing, the President’s critics immediately began asserting that Comey’s testimony proved that President Trump “obstructed justice” by “interfering” with the FBI’s investigation into Flynn.

The phrase “obstruction of justice” has been thrown around a lot recently, but no one really explains what it means. And those that do know what it means have not provided any in-depth explanation for why President Trump may or may not have “obstructed justice.” This is because many of the op-eds discussing the issue have been published in outlets that strictly limit the number of words an op-ed may be.

Accordingly, I set out here to provide a thorough, yet concise, analysis of the allegation that President Trump obstructed justice. Though the topic and legal nuances are complex, any prosecution for obstruction of justice ultimately depends upon the facts of each particular case. I will, therefore, first layout the facts as they have been reported. Once the facts are ascertained, I will then narrow the issue to determine the core of the allegation. Finally, I will consult relevant case law to examine whether the President, in fact, obstructed justice.

The Facts: A Relevant Timeline

April 2014: Lt. Gen. Michael Flynn was “forced out of his leadership role as the Director of the Defense Intelligence Agency after clashes with the then-Director of National Intelligence, James Clapper.

October 2014: Flynn incorporates the “Flynn Intel Group LLC” in Virginia.

December 2015: Flynn speaks at an event hosted by Russia Today (RT), Russia’s state run television station. Flynn is paid for attending this event, and was notably seated at Russian president Vladimir Putin’s table.

February 2016: Flynn reveals he is advising several presidential campaigns, one of which is Trump’s.

July 2016: Flynn officially endorses Trump at the Republican National Convention.

August 9th, 2016: Flynn reportedly signs a six-figure contract with Inovo BV, a Dutch company, for which Flynn promises to lobby on behalf of the Turkish government for three months. After signing this contract, Flynn (1) investigated Fethullah Gulen, a Turkish cleric suspected of orchestrating an attempted coup in July 2016 that failed to remove Turkish president Recep Tayyip Erdogan from power; (2) worked on a documentary to boost Turkey’s image, though the film was never finished; (3) wrote an election day op-ed in The Hill newspaper headlined, “Our ally Turkey is in crisis and needs our support”; and, (4) days before Trump’s inauguration, refused to sign off on a plan (opposed by Turkey) to arm Syrian Kurdish fighting forces for the purpose of retaking the ISIS capital of Raqqa.

November 8th, 2016: Donald Trump is elected President.

November 17th, 2016: Trump asks Flynn to be his National Security Adviser. Flynn accepts.

November 30th, 2016: The Department of Justice (DOJ) informs Flynn it is looking into his lobbying work, and requests information about him and his business; Flynn’s contract with Inovo BV also ends on this day.

December 29th, 2016: President Obama expels from the United States 35 Russian diplomats suspected of being intelligence operatives, and who were thought to have been a part of Russia’s alleged “interference” in the 2016 Presidential election. The same day, Flynn has five calls with Russian ambassador Sergei Kislyak, during which those sanctions are discussed.

January 4th, 2017: Don McGahn, Trump’s slated White House counsel, is informed that the DOJ is scrutinizing Flynn’s lobbying practices.

January 6th, 2017: Comey informs President Trump that he is not personally under investigation in relation to the Russia probe.

January 12th, 2017: The Washington Post’s David Ignatius publicly reveals for the first time the fact that the December 29th calls between Flynn and the Russian ambassador occurred.

January 15th, 2017: Vice-President-elect Mike Pence denies that Flynn discussed the recently imposed sanctions on CBS’s Face the Nation.

January 24th, 2017: The FBI interviews Flynn at the White House about his calls with the Russian ambassador. In the interview, Flynn initially denies discussing sanctions with the Russian ambassador, but then tells investigators that he could not be sure of that account and was unable to remember the contents of some of the conversations. Despite the inconsistencies, CNN later reports that the FBI interviewers said Flynn was cooperative and truthful, and they did not think charges would be pursued, because they did not believe Flynn intentionally mislead them.

January 26th, 2017: Acting Attorney General Sally Q. Yates calls White House Counsel McGhan to inform him that Flynn was susceptible to Russian blackmail, due to his inaccurate account of his conversations.

January 27th, 2017: President Trump and Comey dine one-on-one in the Green Room at the White House. During this meeting, Comey again tells Trump that he is not under investigation.

February 9th, 2017: The Washington Post publicly reveals that Flynn did discuss sanctions with the Russian ambassador on some of those December phone calls.

February 13th, 2017: Flynn resigns as National Security Adviser.

February 14th, 2017: The next day, in a one-on-one meeting with Comey in the Oval Office, President Trump allegedly says, “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.” After the Oval Office meeting, Comey allegedly memorializes details of the conversation in an “unclassified memo,” in which Comey allegedly recalls that he did not believe the President was trying to shut down the Russia investigation, and instead “understood the President to be requesting that [h]e drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.” Comey testified that, at the time of this request, Flynn was still “in legal jeopardy” for his statements to the FBI regarding his calls with the Russian ambassador. Comey also testified that he did not brief anyone outside of the FBI’s “senior leadership” on the Oval Office meeting, because he did not want to infect the ability of investigators to reach independent conclusions. (The FBI’s website says the positions of Director, Deputy Director, Associate Deputy Director, Chief of Staff/Senior Counselor, and Deputy Chief of Staff are the only positions bearing the “senior” label.)

February 15th, 2017: NBC News’s Pete Williams reports that Flynn was not in legal jeopardy for either the phone calls or his subsequent statements to the FBI. Several other reports from NPR and the above-cited CNN report seconded those conclusions.

February 16th, 2017: At a press conference, President Trump tells the press the same thing he told Comey. “Mike Flynn is a fine person,” the President said. “[W]hat he did wasn’t wrong.”

March 7th, 2017: Flynn officially registers as a foreign agent of the Turkish government.

March 30th, 2017: President Trump tells Comey over the phone that “if there were some ‘satellite’ associates of his who did something wrong [as it relates to Russia], it would be good to find that out,” according to Comey’s written testimony. Comey tells President Trump that he had briefed members of Congress on the Russia investigation, during which Comey told Congress that the President is not personally under investigation. President Trump presses Comey to “get that fact out” that the President is not personally under investigation.

April 11th, 2017: President Trump calls Comey to again inquire when he could publicly state that President Trump is not personally under investigation.

May 3rd, 2017: Comey tells the Senate Judiciary Committee on FBI oversight that no one from the Department of Justice has ever told him to “stop [an investigation] for a political reason.”

May 9th, 2017: President Trump fires Comey.

May 10th, 2017: CNN reports that grand jury subpoenas seeking business records had been issued to business associates of Flynn in the weeks before Comey’s firing.

May 11th, 2017: Acting FBI Director Andrew McCabe tells the Senate Intelligence Committee, “there has been no effort to impede our investigation today.”

June 7th, 2017: Director of the National Security Agency Admiral Rogers tells the Senate Intelligence Committee, “I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate. And to the best of my recollection, during that same period of service, I do not ever recall feeling pressured to do so.” Director of National Intelligence Dan Coats says in that same hearing, “I have never been pressured, I’ve never felt pressure to intervene or interfere in any way with shaping intelligence in a political way or in relationship to an ongoing investigation.” These statements came in response to a May 22nd article in The Washington Post alleging that President Trump asked both Coats and Rogers to “help him push back against” the Russia investigation.

June 8th, 2017: Comey testifies for the first time since his firing.

Narrowing the Issue

From the facts above, Flynn seems to have been a part of at least three investigations: (1) the general investigation into Russian interference, one aspect of which seeks to determine whether any “collusion” between the Trump campaign and Russia occurred; (2) the investigation into his calls with the Russian ambassador; and (3) the investigation into whether he lied to the FBI when he was questioned about his calls with the Russian ambassador.

Given the President’s comments indicating that he would welcome the prosecution of any “satellite” associates of his if any of them colluded with the Russians, I do not infer from the President’s conduct an effort to obstruct that investigation.

The investigations into Flynn’s calls and subsequent statements to the FBI present a closer question. The President’s statement suggesting that Comey should “let Flynn go” is ambiguous, and could reasonably be interpreted as referring to one, the other, or both investigations. However, Flynn is unlikely to be prosecuted for any offense arising from his calls with the Russian ambassador. This is because the law under which Flynn would be prosecuted (the Logan Act) has never been used to convict anyone since it was put on the books in 1799.

Accordingly, my analysis will center on whether President Trump obstructed justice by interfering with the investigation into Flynn’s subsequent statements to the FBI about his calls with the Russian ambassador. I turn there now.

Legal Analysis

M y analysis is divided into two parts. The first part examines the scope of the President’s executive power, specifically whether he has the authority to order an investigation be dropped. The second part probes whether, if the President does not possess the constitutional authority to end an investigation, the President violated any of the federal obstruction of justice statutes.

Scope of Executive Power

The President has the Constitutional authority to order the FBI to drop an investigation. This authority is outlined in Article II of the Constitution.

The frame through which the scope of executive power should be viewed is Article II, Section 1, Clause 1, which says, “[t]he executive Power shall be vested in a President of the United States of America.” Of note, executive power is vested in a President, rather than the Executive Branch. This means that no person working within the Executive Branch has any Constitutional authority, only authority delegated to him or her by the President. In short, every Executive Branch officer ultimately answers to the President, because every action taken as an executive officer is actually an action taken on behalf of the President. Accordingly, as the sole holder of executive power, the President may order his subordinates to carry out that authority in a particular way.

Specifically, two provisions of Article II provide the basis for the President’s authority to order the end of an investigation.

The first is Article II, Section 3, which provides that the President “shall take Care that the Laws be faithfully executed.” This clause makes clear that the President may only execute the laws, not make them; and also that, in the course of execution, the President is to have control over the enforcement of the law. “Common sense suggests that the President may enjoy some discretion in order to gauge the costs and benefits of investigation, apprehension, and prosecution,” the Heritage Foundation’s Guide to The Constitution reads. The Supreme Court agrees. In United States v. Nixon (1974), for example, the court held that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.

Second, the President’s power to pardon those who commit “Offenses against the United States” (Article II, Section 2, Clause 1) confirms the existence of such prosecutorial discretion. According to the Congressional Research Service, the power to pardon is absolute, and the Supreme Court has long held, such as in United States v. Klein (1871), that the power to pardon is “granted without limit.” Indeed, instead of expressing “hope” that Flynn be spared from criminal prosecution, President Trump could have simply pardoned Flynn to achieve that desired end. If that did happen, then there would be no question that the President acted pursuant to his authority.

Daniel Hemel and Eric Posner (professors at the University of Chicago School of Law) penned an op-ed for The New York Times, in which they argued that the power of the pardon is not absolute, suggesting that, “[w]hile the president most certainly has this power, we know of no one who believes that the president can simply sell pardons for cash.” That claim is factually incorrect. Recall the very last day of President Bill Clinton’s administration when he pardoned Marc Rich, who, according to FBI documents, had been living in exile in Switzerland since 1983 to escape prosecution for mail fraud, wire fraud, tax evasion, racketeering, and illegal trade with Iran during the hostage crisis. Prior to the pardon, an intense lobbying effort was made on Rich’s behalf by, among others, his ex-wife, who pledged to contribute $450,000 to the Clinton Presidential Library in exchange for the pardon. In fairness, though, it is entirely possible that Hemel and Posner were speaking tongue-in-cheek.

Similar to the Presidential pardon, the President’s exercise of prosecutorial discretion is absolute. Even Comey conceded this much during his testimony in this exchange with Oklahoma Senator James Lankford:

LANKFORD: If the President wanted to stop an investigation, how would he do that? . . .

COMEY: . . . I think 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.

Philip Allen Lacovara, who served as counsel to Watergate special prosecutor Archibald Cox, wrote an op-ed in The Washington Post, in which he makes the bold claim that “[t]his kind of presidential intervention in a pending criminal investigation has not been seen, to my knowledge, since the days of Richard Nixon and Watergate.” This claim, however, does not withstand the great weight of the historical record.

Recall the waning days of the George H.W. Bush administration, in which President Bush pardoned six individuals — most notably, former Secretary of Defense Caspar Weinberger, who was charged with concealing evidence after refusing to turn over documents — connected to the Iran-Contra affair. The extent of President Bush’s “intervention in a pending criminal investigation” was contemporaneously documented in a New York Times article:

“But in a single stroke, Mr. Bush swept away one conviction, three guilty pleas and two pending cases, virtually decapitating what was left of [Independent Counsel Lawrence] Walsh’s effort, which began in 1986.”

President Trump’s mere suggestion that he hoped Flynn would be “let go” pales in comparison to the interventions of President Bush and Clinton, both of which shut down active criminal investigations.

In total, the President has the Constitutional authority to end or begin an investigation. Nevertheless, some still insist that the President is guilty of obstruction of justice. Therefore, I turn now to the federal obstruction of justice statutes.

Applicability of Federal Obstruction of Justice Statutes

Even though the President has the authority to end an investigation, he may not do so in a way that otherwise obstructs justice. So, for example, while the President could order the FBI director to end an investigation, he may not instruct his chief of staff to feed a false cover story to the FBI in order to thwart an investigation (e.g., Watergate).

Even if the President lacked the Constitutional authority to end an investigation, his conduct does not come close to constituting an “obstruction of justice” within the meaning of federal law.

The statutes most often referenced are §1503, §1505, and §1512(c). Sections 1505 and 1512(c), however, are not applicable here, because FBI investigations do not fall within the scope of their statutory language.

Section 1505 applies to any “proceeding” before a “department or agency of the United States.” Hemel and Posner argue that “publicly reported facts” suggests that there is “a strong case” against the President under this statute. But courts evaluating the question have concluded the opposite. After examining the case law and legislative history, the United States District Court for the Western District of Kentucky held in United States v. Higgins (1981), for example, that “a criminal investigatory agency, in contradistinction to an administrative or regulatory agency, has no power to engage in rulemaking or adjudication,” and since “the F.B.I. has no rulemaking or adjudicative powers,” an FBI investigation “[is] not a ‘proceeding’ within the meaning of the statute.”

The Higgins court also found it “significant” that, in its eighty-two years on the books, the statute had “never been applied to a criminal investigation by a federal law enforcement agency.” Between 1981 and 2013, the statute had still never been so applied, according to the United States District Court for the Northern District of Georgia in United States v. McDaniel (2013). To my knowledge, section 1505 has still not been applied in that manner since then.

Section 1512(c) specifically applies to obstruction of “any official proceeding.” In 2013, the United States Court of Appeals for the Ninth Circuit squarely confronted the question whether an FBI investigation constituted an “official proceeding” within the meaning of 1512(c) in United States v. Ermoian. The court there firmly held that “a criminal investigation is not an ‘official proceeding’ under the obstruction of justice statute.” The Ermoian court remains the only federal appellate court to examine whether an FBI investigation falls within 1512(c). I have no reason to doubt their conclusion.

Thus, the only relevant statute at issue is section 1503. Section 1503 is split into two clauses. The first clause proscribes the intimidation of a juror or court officer. Because Comey was neither an officer of a court nor a juror, this clause would not apply here. The second clause, referred to by courts as the “omnibus clause,” criminalizes a broader set of conduct and opens up to criminal prosecution 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 administration of justice.”

The words in bold constitute the three elements of the offense. As the United States Court of Appeals for the Fifth Circuit put it in United States v. Neal (1992), the prosecution must prove (1) “that there was a pending judicial proceeding”; (2) “the defendant had knowledge or notice of the pending proceeding”; and (3) “the defendant acted corruptly with the specific intent to obstruct or impede the proceeding or the due administration of justice.” Each is examined in turn.

“[P]ending judicial proceeding”

This element is not satisfied, because there is no evidence that a pending judicial proceeding related to Flynn’s statements to the FBI existed — ever.

In United States v. Aguilar (1995), the Supreme Court described the phrase “due administration of justice” as referring to “judicial or grand jury proceedings,” meaning, as the court said, “it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” This element, then, turns on whether the particular FBI investigation in question was at a stage where it was “independent of the court’s or grand jury’s authority,” and thus an “ancillary proceeding.”

Public reporting has revealed the existence of only one grand jury investigation, located in Alexandria, Virginia, and from which subpoenas have been issued. The grand jury’s location is significant, because the Department of Justice’s U.S. Attorneys’ Manual says, “A case should not be presented to a grand jury in a district unless venue for the offense lies in that district.” Since Flynn’s business is incorporated in Virginia, any offense(s) related to his business conduct would need to be prosecuted in Virginia.

The FBI interviewed Flynn about his calls with the Russian ambassador at the White House. This means that a grand jury probe into whether Flynn lied to the FBI would have to be empaneled in Washington, D.C. since that would be the place where the crime (lying to the FBI) occurred. Nothing in the public record before (or after, for that matter) February 14th indicated that a Washington-based grand jury had been empaneled to investigate whether Flynn lied to the FBI.

Due to this lack of evidence, the investigation into Flynn’s statements to the FBI qualifies, consistent with Aguilar, as “some ancillary proceeding.” The first element of obstruction of justice, therefore, has not been met.

The analysis should end here, because, with regard to the second and third elements, the President can neither be aware of nor intend to obstruct a non-existent proceeding, respectively. Nevertheless, I will assume, for the sake of argument, that this element has been met in order to proceed with the analysis.

“[K]nowledge of the pending proceeding”

A s the addition of the word “knowledge” implies, not all forms of obstruction are unlawful. One merely obstructing an FBI investigation unconnected to a judicial proceeding, for example, would not be within the purview of §1503. Neither would one who unknowingly obstructs an FBI investigation connected to a judicial proceeding. The United States Court of Appeals for the Seventh Circuit succinctly explained this point in Torzala v. United States (2008), in which the court held, “it is true that demonstrating a defendant’s awareness of an FBI investigation is not sufficient to establish a § 1503 violation; rather, the defendant must be aware of an investigation related to judicial proceedings.”

Courts have held that knowledge of a specific judicial proceeding can be established if a defendant either personally received a grand jury subpoena or was informed by another of the existence of a grand jury probe. The accused must have known at the time of the alleged obstruction that an FBI investigation connected to a judicial proceeding existed. Because Comey testified that he and President Trump only discussed Flynn on one occasion, it is imperative to discern whether President Trump knew of a judicial proceeding related to the FBI’s investigation into Flynn’s statements to the FBI on February 14th, the day he expressed his “hope” that Flynn would be “let go.”

Given that Flynn was interviewed at the White House, President Trump likely knew about the FBI investigation into Flynn’s statements. However, that is not the standard. The standard is that a defendant must have knowledge of an FBI investigation connected to a judicial proceeding. Evidence to substantiate that proposition has never emerged.

The second element, therefore, has not been satisfied. But again, I will assume that it has been satisfied to facilitate a thorough analysis of the issue.

“[A]cted corruptly to impede”

This element requires a showing that the defendant acted with the specific intent to obstruct justice. There is no evidence of such intent. The mere expression of hope, regardless of Comey’s subjective personal feelings about the situation, does not rise to the level of intent necessary for criminal prosecution.

The context in which the comments were made is important. Hemel and Posner point to two cases that “have held that similar ‘I hope’ statements can — depending on the context — support charges of obstruction.” However, upon further review, the “I hope” statements at issue in those two cases are categorically distinct from the “I hope” statements in this case.

First, Hemel and Posner point to United States v. Johnson (1995), in which the defendant was accused of threatening a federal witness after he observed the witness meet with a federal drug task force agent. Specifically, the defendant said to the federal witness, “I hope you aren’t doing what I think your doing because that’s unhealthy.” The addition of “because that’s unhealthy” turned the defendant’s statement from a mere expression of hope into a threat. To the contrary, the President’s statements did not include any such threatening language.

The second case is United States v. McDonald (2008). In that case, the defendant attempted to obstruct justice by urging his girlfriend accomplice to lie to police and deny that he used a weapon during a bank robbery. Defendant sent his girlfriend a letter that said, in part, “I hope and pray to God you did not say anything about a weapon when you were in Iowa.” Subsequently, when his girlfriend visited him in jail, the defendant “held up a note that said, ‘Don’t tell them about the knife.’” There is no evidence that the President instructed anyone to lie to investigators, which fundamentally distinguishes the President’s statements from those at issue in McDonald.

In the President’s case, President Trump made the statements to Comey the day after Flynn was forced to resign in disgrace. The President’s statements explaining how Flynn is a “good guy” and that he hoped Flynn could be “let go” if he lied to the FBI comes across as more of an action in human compassion than of a corrupt elected official, one issuing a threat, or instructing someone to lie to federal investigators.

Flynn had his career destroyed and is the victim of a felonious leak; sparing him from criminal prosecution related to his FBI interview could be seen as an exercise of prosecutorial discretion, considering the nature of Flynn’s situation. Moreover, given that the totality of the President’s discussion of Flynn with Comey was a single meeting, no reasonable prosecutor would bring an obstruction case based on such evidence.

Tellingly, Comey appeared to admit this much during his Senate testimony in this exchange with Idaho Senator James Risch:

RISCH: You may have taken [the President’s statement] as a direction but that’s not what he said.

COMEY: Correct.

RISCH: He said, I hope.

COMEY: Those are his exact words, correct.

RISCH: You don’t know of anyone ever being charged for hoping something, is that a fair statement?

COMEY: I don’t as I sit here.

The lack of a factually similar situation in which someone was prosecuted for a particular crime was one of the justifications Comey gave for not recommending charges against Hillary Clinton. That same reasoning seems to apply here too.

Conclusion

I n sum, the President has the Constitutional authority to direct the FBI to end any investigation. However, even absent that authority, the facts before us do not establish a violation of the federal obstruction of justice statutes, because there is no evidence to substantiate the existence of a grand jury probe into Flynn’s statements to the FBI, meaning that, at the time the President expressed “hope” that Flynn would be spared, any FBI investigation into Flynn’s conduct would be merely “some ancillary proceeding.”

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