Without ever stating that President Donald Trump obstructed justice, former FBI director James Comey methodically laid out the case for charging Trump with the crime of obstruction of justice, an impeachable offense.
In written and oral testimony before the Senate Intelligence Committee, Comey provided an explosive account of an attempted cover-up by the president.
Obstruction of justice requires the attempt to halt an investigation with a corrupt intent. Trump corruptly tried to block the pending criminal investigation of former National Security Advisor Michael Flynn. The day after Flynn resigned, the president allegedly warned Comey, “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.” Comey testified, “I took it as a direction” that “this is what he wants me to do.... [I] replied only that ‘[Flynn] is a good guy.’”
According to Comey, Trump asked Attorney General Jeff Sessions, Jared Kushner and others to step out of the Oval Office before the president requested that Comey drop the “open FBI criminal investigation” of Flynn for “his statements in connection with the Russian contacts, and the contacts themselves.” Clearly, the president didn’t want anyone else to hear what he had to say to Comey. This is evidence for the case that Trump made the request to Comey for a corrupt purpose.
Comey felt so uncomfortable after the exchange with Trump, he later asked Sessions not to leave him alone with the president.
Two weeks earlier, Trump had invited Comey to a private dinner at the White House: just the two of them. Comey said the president asked him whether he liked his job and wanted to keep it, twice demanding “loyalty” from the FBI director. Comey testified that the president said, “I need loyalty, I expect loyalty.” Pressed by Trump, Comey said he finally assured the president he would get “honest loyalty” from the FBI director.
Comey testified that he was puzzled by the fact that the president had, on “multiple” occasions, told him he was doing a great job and hoped he would remain at the post. Comey, who had repeatedly told Trump he intended to stay, said he thought the president was trying to create a “patronage” relationship by hinting that Comey’s job depended on pledging loyalty to Trump. “I got the sense my job would be contingent upon how he felt I conducted myself and whether I demonstrated loyalty,” Comey testified.
On two subsequent occasions, Trump called Comey and told him the Russia investigation was “’a cloud’ impairing his ability to act on behalf of the country.” Trump asked Comey to “lift the cloud.”
Trump repeatedly urged Comey to “get that fact out” that Trump wasn’t personally being investigated. Comey testified, “The FBI and the Justice Department had been reluctant to make public statements that we did not have an open case on President Trump for a number of reasons, most importantly because it would create a duty to correct, should that change.”
When Comey didn’t halt the investigation of Flynn, Trump fired him. The next day, Trump boasted to Russian officials in the Oval Office, “I just fired the head of the F.B.I. He was crazy, a real nut job,” adding, “I faced great pressure because of Russia. That’s taken off.”
The day after talking to the Russian officials, Trump told NBC’s Lester Holt, “When I decided to just do it [fire Comey], I said to myself … this Russia thing with Trump and Russia is a made-up story.”
Comey testified that he was confused when he heard the president say on television “that he actually fired me because of the Russia investigation, and learned again from the media that he was privately telling other parties that my firing had relieved great pressure on the Russia investigation.” Comey added, “Something about the way I was conducting it, the president felt created pressure on him that he wanted to relieve.”
On May 12, Trump issued a veiled threat against Comey, tweeting, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” Comey testified yesterday, “Lordy, I hope there are tapes,” indicating that such evidence would corroborate his recollection of Trump’s incriminating statements.
Comey testified that he had a “gut feeling” that Trump might lie about what had transpired during their conversations. So, he memorialized them in written memoranda. This was a new practice for Comey; he had never thought it necessary to keep a record of his conversations with Presidents Bush and Obama. Comey said his gut told him he couldn’t trust Trump. “I was honestly concerned [Trump] might lie about the nature of our meeting so I thought it important to document,” Comey testified.
Trump’s acts constitute probable cause that he engaged in obstruction of justice. As Philip Allen Lacovara, former Justice Department deputy solicitor general and counsel to Watergate special prosecutors Archibald Cox and Leon Jaworski, wrote in the Washington Post:
Comey’s statement lays out a case against the president that consists of a tidy pattern, beginning with the demand for loyalty, the threat to terminate Comey’s job, the repeated requests to turn off the investigation into Flynn and the final infliction of career punishment for failing to succumb to the president’s requests, all followed by the president’s own concession about his motive. Any experienced prosecutor would see these facts as establishing a prima facie case of obstruction of justice.
Obstruction of justice is a felony, which is a “High Crime.” The articles of impeachment in the cases of both Presidents Richard Nixon and Bill Clinton included allegations of obstruction of justice.
Moreover, even if Trump’s conduct did not meet the elements of obstruction of justice, it nevertheless provides a basis for impeachment.
The Constitution provides for impeachment of the president when he commits “High Crimes and misdemeanors.” They include, but are not limited to, conduct punishable by the criminal law.
Alexander Hamilton wrote in the Federalist No. 65 that offenses are impeachable if they “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
The Judiciary Committee’s impeachment inquiry staff during the Nixon case wrote in 1974 that impeachment “is to be predicated only upon conduct seriously incompatible with … the proper performance of constitutional duties of the presidential office.” Under the Constitution, the president has a duty to “take Care that the laws be faithfully executed.”
By attempting to halt a criminal investigation and then firing the FBI director who refused to comply, Trump violated the “take care” clause of the Constitution. Instead of taking care to enforce the laws, Trump has endeavored to circumvent them.
Comey’s written testimony “is the most shocking single document compiled about the official conduct of the public duties of any President since the release of the Watergate tapes,” Benjamin Wittes, editor-in-chief of the Brookings Institution’s Lawfare blog, wrote.
To spur the appointment of a special counsel, Comey leaked his memos to a friend who is a professor at Columbia Law School and asked him to make them public. Professor Daniel Richman provided Comey’s memos to the New York Times.
On May 17, the Justice Department appointed former FBI director Robert Mueller as special counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.”
“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct,” Comey testified. “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 find out the intention and whether that’s an offense.”
Comey’s testimony painted a clear pattern of obstruction of justice and of Trump’s failure to take care to enforce the laws. After independent counsel Kenneth Starr concluded there was evidence of wrongdoing by President Clinton, he turned over his findings to the House of Representatives for impeachment proceedings. Mueller could do the same.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild.