The claim that Donald Trump is guilty of obstructing justice suddenly looks more plausible in light of the report that the president asked then-FBI Director James Comey to drop his investigation of former National Security Adviser Michael Flynn. But it still would be hard to make that charge stick in federal court (although it would be easier in impeachment proceedings, where Congress decides how much evidence is enough). The chief obstacle might be that Trump is too ignorant to be guilty.
The U.S. Code includes more than 20 provisions dealing with obstruction of justice. The most appropriate one in this context seems to be 18 USC 1505, which makes it a felony to "influence, obstruct, or impede the due and proper administration of the law," either "corruptly, or by threats or force, or by any threatening letter or communication." The provision covers "any pending proceeding…before any department or agency of the United States," which according to the U.S. Court of Appeals for the D.C. Circuit includes investigations. The appeals court rejected the argument that "§1505 applies only to adjudicatory or rule-making activities, and does not apply to wholly investigatory activity."
On the face of it, Trump's actions might fit the description of this offense. He and his spokesmen have offered shifting, often contradictory, and sometimes plainly phony explanations for his decision to fire Comey last week. But in his May 11 interview with NBC News, Trump admitted that the FBI's investigation of Russian meddling in the presidential election, which includes the possible involvement of the Trump campaign, was on his mind. "When I decided to just do it," he said, "I said to myself…this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should have won." At the same time, Trump insisted that he wants the investigation, which he slammed as a "taxpayer-funded charade" the day before he sacked Comey, to proceed.
Although Trump clearly has the constitutional authority to fire the FBI director, even legal actions can qualify as obstruction if done "corruptly," i.e. "with an improper purpose, personally or by influencing another." But proving that Trump specifically intended to impede the FBI investigation when he dismissed Comey would be tricky. In all likelihood, Trump had a mix of motivations, including (by his own admission) irritation at the investigation of ties between Russia and his associates but also his feeling that Comey was too easy on Hillary Clinton, that he was insufficiently enthusiastic about pursuing leakers, that he was disloyal in contradicting Trump's claim that Barack Obama tapped his phones, and that he was rude to say he feels "mildly nauseous" about the possibility that his handling of the Clinton investigation helped Trump win.
"Obstruction of justice cases often come down to whether prosecutors can prove defendants' mental state when they committed the act," notes New York Times reporter Charlie Savage in a legal explainer he updated yesterday in light of the latest revelation. "It is not enough to show that a defendant knew the act would have a side consequence of impeding an investigation; achieving that obstruction has to have been the specific intention."
The motive for Trump's alleged intercession on behalf of Flynn, one of the associates whose ties to Russia are a matter of interest to the FBI, seems much clearer. According to a description of notes by Comey that was shared with The New York Times and NBC News by two people who claim to have read them, Trump asked Comey to stick around after a national security meeting on February 14, the day after Flynn was forced to resign because he had lied about his contacts with Russian officials. "I hope you can see your way clear to letting this go, to letting Flynn go," Trump reportedly told Comey. "He is a good guy. I hope you can let this go."
The White House denies this account of Trump's conversation with Comey. But if the contemporaneous memo described by the Times and NBC exists, it would be pretty strong evidence that the White House is (once again) lying. Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight Committee, wants to see the document, along with Comey's written accounts of other conversations with the president. In a letter he sent to Acting FBI Director Andrew McCabe yesterday, Chaffetz notes that such memos would "raise questions as to whether the president attempted to influence or impede the FBI's investigation."
Sen. Angus King (I-Maine) went further, saying the reported conversation "certainly appears to meet the definition in the [obstruction] statute." Rep. Ted Deutch (D-Fla.) was even surer. "Asking FBI to drop an investigation is obstruction of justice," Deutch tweeted yesterday. "Obstruction of justice is an impeachable offense."
It's not clear whether McCabe, who last week told the Senate Intelligence Committee "there has been no effort to impede our investigation to date," knew about the alleged conversation regarding Flynn. But even assuming the account is true, proving that Trump acted with the requisite criminal intent might be difficult, especially since it is entirely plausible, given what we know about the president's ignorance of how the federal government works, that he did not realize his attempt to help Flynn was improper. If so, it is hard to see how he could have acted "corruptly," as the statute's mens rea element requires. The problem here is similar to the challenge of characterizing Trump's myriad misstatements. Is it a lie if he thinks it's true? Is it a crime if he does not realize he's breaking the law?
"I do not believe that our president sufficiently understands the nature of the office that he holds, the nature of the legal constraints that are supposed to bind him, perhaps even the nature of normal human interactions, to be guilty of obstruction of justice in the Nixonian or even Clintonian sense of the phrase," writes New York Times columnist Ross Douthat. He has a point. Someone who understood that firing Comey could be construed as obstruction of justice would not have broadcast his irritation with the Russia investigation the day before or so casually admitted afterward that it was a factor in his displeasure with Comey. Someone who understood that asking the director of the FBI to lay off Flynn could be construed as obstruction of justice never would have asked.
"It is a child who asks the head of the FBI why the rules cannot be suspended for his friend and ally," Douthat says, and a child "cannot really commit 'high crimes and misdemeanors' in any usual meaning of the term." But that determination is ultimately up to Congress, which needn't worry about the legal niceties that can make a crucial difference in criminal court. Obstruction of justice figured prominently in the articles of impeachment against Richard Nixon and Bill Clinton. At that point (which seems quite distant for Trump right now), obstruction is whatever 67 senators say it is.