I’m sure that, like me, many of you are dangling on tenterhooks in anticipation of James Comey’s testimony before Congress tomorrow. The internet has been all atwitter about the possibility that Trump committed obstruction of justice by asking Comey to drop the Russia Investigation, and then firing him, presumably because he would not do so. Although many experts agree there is a heavy aroma of obstruction in the air, most also agree that we haven’t quite found the smoking gun. So here’s my take on what we know, what the law says, and which issues you should be looking out for when your eyes are glued to Comey’s testimony tomorrow.
The deeds we know the Donald has done
James Comey has a reputation for meticulous recordkeeping and an excellent memory, and the man of the hour has helpfully provided us with a pre-interrogation factual background of his interactions with Donald Trump (his full statement can be found in the above link). Here’s what we know so far:
- January 6, 2017 briefing: Comey briefed Trump alone on the “personal” elements of “salacious” and “unverified” Intelligence Community review of elements of the Russia investigation. This appears to refer to the Steele Dossier.
- January 27, 2017 dinner: Trump asked Comey, who had already agreed to stay on as FBI Director, whether he would like to keep his job, noting many people would be eager to take it on. Shortly thereafter he said “I need loyalty, I expect loyalty.” Trump repeated his demand for loyalty, and when Comey promised honesty, Trump settled on “honesty loyalty,” and Comey agreed.
- February 14, 2017 meeting: Trump discussed at length his concerns with intelligence leaks and suggested he hoped Comey could drop the investigation into Michael Flynn.
- March 20, 2017: Comey testified before Congress that the FBI is investigating the Trump campaign’s ties to Russian election tampering.
- March 30, 2017 phone call: Trump told Comey the entire Russia investigation is a “cloud” hanging over his Presidency and asked if Comey could act to “lift the cloud.” He also raised concerns that Deputy FBI Director McCabe was too associated with the Clintons, and wondered again about the “cloud.” Trump asked Comey to “get out” (to the public) that Trump himself was not under investigation. Comey reported Trump’s request to end the investigation to the Deputy Attorney General for the Russia investigation.
- April 11, 2017 phone call: Trump calls Comey and says “the cloud” is still hanging over him. Comey said he had referred the issue to the Deputy Attorney General, and that would be the proper channel for Trump’s request.
- May 2, 2017: Trump says Comey is the best thing that happened to Hillary Clinton, because he “gave her a pass” for her “many bad deeds.”
- May 8, 2017: Trump tweets that the Trump-Russia is a “hoax” and asks when the “taxpayer-funded charade” will end.
- May 9, 2017: Trump fires Comey, and claims he did so because the Justice Department recommended it based on Comey’s mishandling of the Hillary Clinton e-mail controversy.
- May 11, 2017: Trump tells Lester Holt of NBC that he was going to fire Comey no matter what, because of his handling of the Russia investigation.
These are the known facts relevant to Trump’s interactions with James Comey. The question is, what do they prove?
The requirements for an obstruction of justice claim
Every crime on the books has specific elements or requirements that a prosecutor must prove in order to convict a defendant. Obstruction of justice is no different. In order to prove obstruction of justice, the U.S. Attorney’s Manual requires that “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.” Now, we can’t be certain Trump would be convictable were he not President – the court cases disagree about whether the relevant statute applies to the FBI (if you are interested in the details, please click the link above to read a great analysis on the Lawfare blog). Fortunately, Donald Trump isn’t in danger of getting prosecuted, he is in danger of getting impeached (pending the outcome of the 2018 elections), and the “high crimes and misdemeanors” required for impeachment need not refer to a line item in the US Code. They are whatever the House of Representatives says they are (a terrifying standard at any time). Since we don’t have a House definition of obstruction for Presidents, the best we can do is analyze Trump’s behavior in light of the statute Congress created to apply to everyone else.
Which elements have been met, and which haven’t?
Element #1: “There was a proceeding pending before a department or agency of the United States.” If we treat FBI investigations as a “proceeding,” there are two “proceedings” that could be implicated here. The first is the larger Trump-Russia investigation being conducted by the FBI’s counterintelligence division. The second is the widely reported grand jury investigation into Michael Flynn. Interference with the Flynn grand jury would fall under a different statute, and since we are not positive about the nature of that investigation or whether Trump could have known about it at the time he asked Comey not to investigate Flynn, I’ll leave that out of my analysis.
Element #2: “The defendant knew of or had a reasonably founded belief that the proceeding was pending.” Trump knew Comey was investigating Russia’s interference in the election on January 6, at the very latest. He became aware that his campaign’s connections to Russia were being investigated when Comey testified before Congress on March 20, at the very latest.
Element #3: “The defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.” This prong is the key. There is already some indication that Trump intended to obstruct Comey’s investigation. After Comey’s March 20 testimony, Trump called him twice, on March 30 and April 11, to try to get him to end the investigation. Trump’s tweet on May 8 also evidences frustration with the investigation, and Trump’s admission in an interview that the Russia investigation inspired him to fire Comey adds yet more fuel to the fire. However, firing Comey because he didn’t like the Russia investigation doesn’t necessarily prove Trump obstructed justice. The problem with that reasoning is Andrew McCabe, the Deputy FBI Director who has known Clinton ties. Trump clearly knew that Comey’s #2 was associated with Democrats; he raised that concern with Comey on their March 30th phone call. It’s difficult to call the firing itself an obstruction of justice if Trump knew ahead of time that the Acting Director wasn’t going to stop the investigation and it was going to be a while until he could get a new Director through the Senate. The question is whether Trump did anything before the firing designed to push Comey to personally change the outcome of the investigation.
Was there coercion, or wasn’t there?
So our task for tomorrow’s hearing is to look for clues to whether there was an implicit or explicit if/then threat from Trump to Comey. Did Trump make it clear to Comey that if he did not “lift the cloud” then Trump would fire him? If so,that is an unquestionable attempt to obstruct the investigation. If not, it’s too easy for a good lawyer to characterize Trump’s talk about a “cloud” hanging over his head as toothless whining (though his personality and past conduct would suggest it was not). It’s easy to see an implied threat; after Comey confirmed an investigation into the Trump campaign, Trump called him and asked him to end the investigation and began talking vaguely about Comey’s Deputy Director. Much of the distinction will involve Comey’s impressions and state of mind. If Comey didn’t perceive a threat in Trump’s statements, it’s hard to prove obstruction, unless Trump tells us he was threatening Comey, which is never out of the realm of possibility with this guy. Hopefully Trump had Comey quaking in his boots. Happy hunting folks – let’s see if that smoking gun turns up tomorrow.