USA Today: James Comey maps a possible obstruction case against Donald Trump
Fired FBI director James Comey sketched a case on Thursday that President Trump had obstructed justice by directing him to drop the bureau’s investigation of former national security advisor Michael Flynn.
In his first public comments since Trump forced him out of the agency, Comey described the president’s request as “stunning,” but consistently maintained that “it’s not for me to say” whether Trump had broken the law. That is an issue for special counsel Robert Mueller, he said. Still, over more than two hours of remarkable testimony to the Senate Intelligence Committee, he walked lawmakers through a series of events that closely track basic elements of a federal obstruction of justice charge.
Comey said Trump met alone with him in the Oval Office on Feb. 14, after asking his aides and Attorney General Jeff Sessions to leave the room. The then-FBI chief said Trump turned the discussion to Flynn, his former national security adviser, whom he had fired the day before. Flynn was then the subject of criminal investigations into a conversation he had with Russia’s ambassador and statements he had made about that contact. Flynn, Comey recalled Trump saying, was “a good guy,” and “I hope you can let this go.”
Comey said he took that as an order. “This is the president of the United States to me alone saying I hope this,” Comey said. “I took it as, this is what he wants me to do. I didn't obey that, but that's the way I took it.”
Whether that order would amount to obstruction of justice is harder to establish. Federal law broadly prohibits people from “corruptly” attempting to influence or interfere with law enforcement proceedings. But prosecutions for violating those laws are both comparatively rare — Justice Department records list 56 cases in which someone was found guilty of violating the laws since 2013 — and difficult. The government must prove that someone sought to influence the case and that their reasons for doing so were improper.
Still, former prosecutors said Comey’s testimony laid out sufficiently clear evidence to justify a deeper investigation of whether Trump had broken the law.
“It was very consequential to have what is the central witness in an obstruction case testifying clearly to the series of events that will reflect on the intent of the people involved,” said Dan Petalas, a former prosecutor in the Justice Department's Public Integrity Section. “We now have a series of events that, at least based on what we know now, strongly suggests a desire to influence the investigation of Flynn.”
The president’s lawyer, Marc Kasowitz, said Thursday that Trump had “never sought to impede” the FBI’s investigation of Russian interference in the 2016 election. And Trump has said that he did not ask Comey to end the FBI’s investigation of Flynn.
Of greatest significance, former prosecutors said, was Comey’s testimony the president’s request that his aides and Sessions leave the Oval Office before he spoke to Comey about Flynn.“The inference one would draw is that Trump knew what he was about to say was inappropriate,” said Julie O’Sullivan, a Georgetown University law professor and former federal prosecutor who served under Comey. “It shows he knew that it would not be a good thing for him to say in front of a room full of people.”
Comey, too, said he was struck by the circumstances. “A significant fact to me is so why did he kick everybody out of the Oval Office?” he said. “Why would you kick the attorney general, the president, the chief of staff out to talk to me if it was about something else? So that, to me, as an investigator, is a significant fact.”
O’Sullivan and other lawyers said it doesn’t matter whether Trump, as the government’s chief executive, had the legal authority to instruct Comey to drop an investigation or to fire him. Otherwise-legal conduct can form the basis of an obstruction charge if it’s done for an improper purpose. Nor does it matter that Comey disobeyed what he understood to be the president’s orders; under the law, an attempt is enough. And it doesn’t matter whether the FBI’s investigation ultimately clears Flynn or the Trump campaign of wrongdoing.
“Obstruction is what gets them every time,” O’Sullivan said. “That’s one lesson that everybody in Washington pretty much knows.”
Comey said he did not tell the agents or lawyers assigned to the Russia investigation about the president’s request. There was, he said, "a real risk of a chilling effect on their work" had they known.
Trump has faced accusations of obstruction ever since he fired Comey in May. But that legal criticism appeared to sharpen after Comey’s testimony on Thursday, as lawmakers expressed concern that the president had impermissibly sought to shut down a criminal probe. Comey “laid out facts for Obstruction of Justice that even a first-time prosecutor could convict on with little difficulty,” Rep. Ted Lieu, D-Calif., said on Twitter.
Republicans on the intelligence panel offered more cautious reactions. Sen. John Cornyn, R-Texas, said he didn't see evidence of obstruction, but "we haven’t concluded our investigation." Sen. Marco Rubio, R-Fla., told reporters he was “not prepared to reach a conclusion” on whether Trump had committed obstruction, but added: “I don’t think anybody would leave this hearing and say to you that what the president said in the Oval Office on the 14th of February was appropriate.”
The Justice Department appointed Mueller as a special counsel to oversee the federal probe into possible ties between the Russian government and Trump’s campaign, as well as “related matters,” a broad grant of authority that would give him the power to probe whether anyone had sought to obstruct the investigation. Comey repeatedly declined to say whether he thought the president’s remarks amounted to obstruction but suggested it was something Mueller would seek to resolve.
Early in the hearing, the intelligence panel's chairman, Sen. Richard Burr, R-N.C., asked Comey whether he thought Trump meant to obstruct justice by asking him to drop the Flynn case, or merely give the general a way “to save face.”
“I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct,” Comey replied. “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 try and understand what the intention was there, and whether that's an offense.”
Comey also suggested that FBI officials had their own concerns about possible obstruction, saying he and other officials decided not to alert the Justice Department to the president’s request in part because “it was of investigative interest to us to figure out what just happened with the president’s request.”
Barak Cohen, a former federal corruption prosecutor, said Comey’s testimony fell short of an ironclad obstruction case. “His testimony leaves the situation pretty muddy,” Cohen said. “There are still questions I expect special counsel Mueller will want to dig into."
In the end, the legal question may be largely academic. Justice Department lawyers have long taken the position that it would be unconstitutional to indict a sitting president. Obstruction could, if Congress chose, be the basis for an impeachment proceeding.
But, as Burr said immediately after the hearing ended: “This is nowhere near the end of the investigation.”