President Donald Trump’s incendiary words and actions have placed him in potential legal jeopardy, with more lawmakers floating concepts like “obstruction of justice” and “impeachment.”
It can all get pretty confusing, so let’s start with what we know.
What’s ‘obstruction of justice?’
It’s a federal crime, or actually several federal crimes, addressed by multiple laws that govern different scenarios. As enumerated by a Congressional Research Service report, there are related laws against obstruction of judicial proceedings, witness tampering and obstruction of congressional or administrative proceedings, among other misbehavior.
It’s serious business. Violations of the “obstruction of congressional or administrative proceedings” statute can be punished by a fine and five years in prison. The witness-tampering statute carries a prison term of up to 10 years.
Could Trump be charged with these crimes?
Not exactly, in all likelihood.
A 2000 Justice Department Office of Legal Counsel analysis concluded that “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
That leaves impeachment, though that might be based on allegations of a crime like obstruction of justice.
OK, so we’re back to that. What, exactly, does the law cover?
That depends on the specific law.
The “obstruction of congressional or administrative proceedings” law targets “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 (pending) before any department or agency of the United States.”
The witness-tampering statute covers, among others, anyone who “knowingly uses intimidation, threatens, or corruptly persuades another person with intent to influence, delay, or prevent” testimony in an official proceeding.
How might that apply to Trump?
As a starting point, investigators might try matching the laws against what’s known and what’s alleged concerning Trump’s interactions with ousted FBI Director James Comey.
An investigator, for instance, might delve into Trump’s May 12 tweet that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
It sounds vaguely threatening. On the other hand, a press leak of the sort Trump was explicitly talking about is not the kind of “official proceeding” covered by the witness-tampering law.
The May 12 tweet, though, might also be considered damning context for the more recent allegation, in multiple news accounts, that Comey wrote a memo or notes following a Feb. 14 private meeting with the president. Comey recounted that Trump had urged him to end the FBI’s investigation of retired Army Lt. Gen. Michael Flynn, Trump’s first national security adviser.
“I hope you can let this go,” Trump told Comey, according to the memo first revealed by The New York Times.
Even if that’s true, Trump merely expressed ‘hope.’ How is that threatening?
Context matters, when prosecutors try to prove the necessary intent.
Trump was speaking to Comey in the Oval Office, the symbolic center of presidential power, and at a time when Comey’s job could be characterized as being on the line. Aides were reportedly asked to leave first, which a dot-connecting prosecutor might cast as vaguely suspicious, or even evidence of consciousness of guilt. Capping it all, Trump fired Comey on May 9.
“If it’s true that Trump tried to shut down the Russia investigation, and then fired Comey when he wouldn’t back off, that’s a pretty good example of obstruction,” Jens David Ohlin, a professor at Cornell Law School, said Wednesday. “Not only that, it’s the kind of corruption that historically has been the basis for an impeachment.”
But it’s only one memo, about one meeting, right?
No, it may be the tip of an iceberg.
A savvy bureaucrat, Comey reportedly prepared memos following other meetings or conversations with Trump and others. Investigators are already tracking this potentially longer paper trail, with the Republican chair of the House Oversight and Government Reform Committee asking the FBI this week to provide any related documents by May 24.
“If true, these memoranda raise questions as to whether the president attempted to influence or impede the FBI’s investigation as it relates to Lt. Gen. Flynn,” wrote Rep. Jason Chaffetz, R-Utah.
So if there’s a potential crime, who would investigate?
That’s the crucial question.
The House of Representatives and Senate Intelligence committees have ongoing investigations into alleged Russian interference with the 2016 U.S. presidential election. These could touch on Flynn’s actions, and potentially reach deeper into Trump’s team, but they are essentially civil rather than criminal proceedings. In such congressional investigations, the biggest legal consequence might result from a witness’s false testimony.
A blue-ribbon special commission or a bipartisan special congressional committee to investigate alleged Russian interference, as some in both parties have suggested, would likewise be more about fact-gathering than about prosecuting.
On Wednesday, Rep. Eric Swalwell, D-Calif., launched a petition to force a House vote on a bill to establish a 12-member investigating commission. Such petitions face very long odds. They need a majority of House signatures, and Democrats control only 193 of the House’s 435 seats.
In a potentially more worrisome development for the embattled president, Chaffetz has urged the Justice Department’s Office of Inspector General to broaden an ongoing probe to include “the facts and circumstances surrounding the removal of Director Comey.”
The IG’s and various committees’ work, moreover, could further undermine Trump’s overall standing, with a drip-drip of revelations that leave him politically vulnerable.
The most direct threat to the president could be appointment of a special counsel by the Justice Department, particularly if the individual chosen aggressively expands the scope of their work, as happened with former independent counsel Kenneth Starr and his years-long pursuit of President Bill Clinton, who was impeached.
It’s always a possibility. But we’ll save that whole “high crimes and misdemeanors” thing for another day.