In a January 29 letter to Special Counsel Robert Mueller that The New York Times published on Saturday, Donald Trump's lawyers explain in detail why he is not guilty of obstructing justice. They are probably right, and it probably does not matter.
The 20-page letter focuses on the two purported incidents of obstruction that have received the most attention: Trump's alleged request that FBI Director James Comey go easy on National Security Adviser Michael Flynn and Trump's subsequent decision to fire Comey. In both cases, attorneys John Dowd and Jay Sekulow argue, Trump did not do what people claim, and even if he had it would be within his constitutional authority as president and outside the scope of the relevant obstruction statutes. "It remains our position," they write, "that the President's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself."
That position has provoked a strong response from Trump's critics, who argue that it places him "above the law." Since the president legally could have ordered Comey to leave Flynn alone or halt the Russia investigation, Dowd and Sekulow say, anything short of that direct approach cannot be obstruction, even if the goal was protecting Trump. If the president has the legal authority to do something, in other words, his motive cannot make it a crime. That's a pretty bold claim, and it is debatable given the broad definition of obstruction in the statute that seems most apposite.
Under 18 USC 1512, someone can commit obstruction by "corruptly" destroying records, "corruptly" persuading someone, or "corruptly" doing anything else that "obstructs, influences, or impedes any official proceeding, or attempts to do so." The law defines corruptly as "acting with an improper purpose." Hence actions that would otherwise be legal—e.g., deleting email, treating someone to a fancy dinner, or simply talking to him—become a crime when done with "an improper purpose." Dowd and Sekulow are claiming the president, by virtue of his role as "the chief law enforcement officer," is special in that regard. Some legal scholars agree; many others do not.
Dowd and Sekulow are on firmer ground in arguing that Trump could not have committed obstruction by interfering with an FBI investigation because an FBI investigation does not qualify as an "official proceeding." According to the U.S. Attorneys' Manual, FBI investigations don't count as "proceedings" under 18 USC 1505, another obstruction provision. Whether they count as official proceedings under Section 1512 is unsettled, but in 2013 the U.S. Court of Appeals for the 9th Circuit concluded that they do not.
Even assuming that interceding with Comey on Flynn's behalf or firing Comey could qualify as obstruction, proving corrupt intent is not as straightforward as it might seem. Trump's alleged comment to Comey about Flynn (which Trump denies making) was ambiguous and could be attributed to personal concern: "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." While Comey said he interpreted the statement as an instruction, it was one he did not follow, and he did not express any concern about its propriety to Trump, to Attorney General Jeff Sessions, or to Deputy Attorney General Rod Rosenstein.
The initial explanation for firing Comey—his unfairness to Hillary Clinton in the way he handled the investigation of her email practices as secretary of state—was hard to buy given that Trump had always complained that she got off too easily. But Sessions and Rosenstein were both complicit in that pretense, putting Rosenstein, who appointed Mueller, in the odd situation of overseeing an obstruction investigation that hinges to a large extent on a motive he himself helped obscure. Trump dropped the cover story within a few days of dismissing Comey, when he admitted in an interview with NBC's Lester Holt that he had already made the decision before receiving guidance from Sessions and Rosenstein.
Trump also conceded that the Russia investigation had been on his mind. But Dowd and Sekulow argue that his rambling comments to Holt were misinterpreted. What the president meant, they say, is that he fired Comey even though he knew that doing so might prolong the investigation. That interpretation is consistent with this excerpt from the interview:
As far as I'm concerned, I want that thing [the Russia investigation] to be absolutely done properly. When I did this now, I said I probably maybe will confuse people. Maybe I'll expand that—you know, I'll lengthen the time because it should be over with. It should—in my opinion, should've been over with a long time ago because it—all it is [is] an excuse. But I said to myself I might even lengthen out the investigation. But I have to do the right thing for the American people. He's the wrong man for that position.
Firing Comey, of course, did not actually end the Russia investigation. To the contrary, it was followed by Mueller's appointment, which probably made the probe broader and longer than it otherwise would have been, just as Trump feared. That upshot casts considerable doubt on whether Trump's dismissal of Comey was such that "its natural and probable effect would be the interference with the due administration of justice," as required to make an obstruction charge stick.
It seems likely that Trump fired Comey for a mixture of reasons, one of them being his anger at the FBI director's refusal to publicly state that he was not a target of the Russia investigation. Given the alternative explanations, proving a specific intent to obstruct justice would be difficult. Even if Trump did tell Russian officials that getting rid of that "real nut job" relieved "great pressure because of Russia," Dowd and Sekulow note, that comment (which Trump denies) "does not establish that the termination was because of the Russia investigation."
Mueller, however, does not have to worry about proving that the president obstructed justice, because he won't be prosecuting Trump. The Justice Department takes the position that a sitting president cannot be indicted, and Mueller's office has told Trump's lawyers he will abide by that policy. In practice, then, it does not matter whether Trump broke the law; what matters is whether Congress decides that he abused his powers egregiously enough to warrant impeachment and removal, which might be true even if his actions do not meet the legal criteria for an obstruction charge. Although "high crimes and misdemeanors" can involve provable violations of the law, Congress has the power to define the phrase on a case-by-case basis.
The question of whether Trump could pre-emptively pardon himself, which he brought up on Twitter this morning, illustrates the distinction between what the president can legally do and what he can do without getting impeached. "I have the absolute right to PARDON myself," Trump tweeted, "but why would I do that when I have done nothing wrong?" On ABC's This Week yesterday, Rudy Giuliani, who joined Trump's legal team after Dowd quit in March, agreed that Trump "probably does" have the legal authority to pardon himself, since the Constitution does not qualify that power. But on NBC's Meet the Press, Giuliani added that "pardoning himself would just be unthinkable" and "would lead to probably an immediate impeachment."