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Did Trump Know Enough to Obstruct Justice?

The charge implies that the president realized he was doing something wrong.

For almost a year, Donald Trump has been complaining that FBI Director James Comey gave Hillary Clinton "a free pass for many bad deeds," as the president recently put it on Twitter. Trump thinks his opponent in last year's presidential election should have been prosecuted for her loose email practices as secretary of state, even if she did not deliberately expose classified information.

The president might want to reconsider that hardline attitude. The reason Comey cited for not recommending charges against Clinton—a lack of criminal intent—could prove crucial in rebutting the allegation that Trump obstructed justice by trying to impede the FBI's investigation of ties between his associates and the Russian government.

When Comey announced the results of the Clinton investigation last July, he criticized her "extremely careless" handling of "very sensitive, highly classified information," saying she "should have known" the unsecured private email system she used "was no place" to discuss such matters. That description sounded like grounds for charging Clinton under 18 USC 793, which makes it a felony to "mishandle classified information either intentionally or in a grossly negligent way."

But Comey argued that "no reasonable prosecutor" would pursue a case against Clinton based on gross negligence. He said he was aware of just one case where the government had used that standard in the century since the law was passed, which suggests federal prosecutors "have grave concerns about whether it's appropriate."

While prosecuting Clinton might have been legally feasible, Comey told a congressional committee, it would have been unjust. "In our system of law, there's a thing called mens rea," he said, referring to the state of mind required for a conviction. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do."

That brings us back to Trump, who has done (or allegedly done) several things that could be viewed as attempts to undermine the FBI's investigation of Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails. The FBI probe, Comey confirmed during congressional testimony in March, encompasses possible collusion between Russia and the Trump campaign.

After Comey said that, The Washington Post reported this week, Trump asked Daniel Coats, director of national intelligence, and Michael Rogers, director of the National Security Agency, to publicly say there was no evidence of such collusion. Both declined, deeming the request improper.

The previous month, according to a Comey memo described by The New York Times, Trump interceded with the FBI director on behalf of former National Security Adviser Michael Flynn, one of the associates whose ties to Russia are of interest to the bureau. "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."

A few months after that alleged encounter, Trump fired Comey. Two days later, Trump admitted that the Russia probe, which he had denounced as a "taxpayer-funded charade" on Twitter the day before he gave Comey the boot, was on his mind when he made the decision.

Some Democrats are already calling for Trump's impeachment, arguing that his response to the FBI investigation amounts to obstruction of justice. But that crime requires proof of intent, and it is not at all clear that Trump knew he was doing something he shouldn't do—the standard that Comey applied to Clinton.

If Trump was acting "corruptly," as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why would he publicly condemn the Russia investigation before and after firing Comey?

These do not seem like the actions of a man who is conscious of his own guilt. They seem like the actions of a man who is only beginning to figure out how a president is supposed to behave.

© Copyright 2017 by Creators Syndicate Inc.

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  • Putter||

    Trump intended to obstruct the investigation. His own words convict him in that regard and when you add the information from Comey, Coats and Rodgers there is no doubt. Trump has had every opportunity to understand that he has no lawful basis to interfere in an FBI investigation. The issue was being reported almost daily and yet Trump continued upon this conspiracy to obstruct. A reasonable man would certainly understand that he was treading on dangerous ground and yet Trump persisted even still and culminated the crime by firing Comey. This didn't happen in a moment. This crime took place over months. There every basis to put the case before a jury.

  • Cyto||

    This is a silly take. We don't have enough to make a reasonable conjecture, let alone take before a jury.

    But beyond that, you blow your own argument out of the water when you compare Trump to "a reasonable man". The guy has no hope of understanding the nuanced difference between "since we all know there's nothing to find, can we wrap this investigation up already?" and "Halt this investigation because it is getting too close", let alone tiptoeing along that line for months. He's a egomaniacal doofus. Why is this so hard for everyone to understand? It was perfectly clear from the moment he took to the small screen in "the Apprentice".

  • colorblindkid||

    The "God this is annoying, you guys need to hurry up and finish this ridiculous investigation" explanation is clearly the most plausible. Could he be the mastermind behind direct collusion with the Russians? Sure. But it is highly unlikely. He just doesn't understand how government and the law works. He's still acting like he's a CEO of his own company, instead of the leader of a monstrous government.

  • Red Rocks Baiting n Inciting||

    Trump intended to obstruct the investigation. His own words convict him in that regard and when you add the information from Comey, Coats and Rodgers there is no doubt.

    You mean "information" that's been read over the phone, with no corroborating documentation that should be easy enough to email to even the laziest journalist?

  • Gandydancer||

    Utter nonsense. How can you have obstruction of justice when there is no crime? When you can show me how Trump "colluded" with the Russians, get back to me about his "interference" with the investigation of it. Until then you're just earning the contempt your hysteria deserves.

  • ||

    Actually, I don't think Sullum distinguishes between intent to do the deed and intent to violate the law. The sort of ignorance that Sullum posits -- failure of Trump to understand that what he was doing was illegal -- is ignorance of the law, and ignorance of the law is no excuse. On the other hand, of course, if Trump did not intend that his actions obstructed justice, he probably has a good defense.

  • ||

    exactly what the facts is

  • gaoxiaen||

    A coin toss. But they're all tossers.

  • colorblindkid||

    But ignorance of the law is exactly why Hillary Clinton isn't in jail. She lied over and over again and did many illegal things, but because she wasn't aware it was illegal, she wasn't indicted.

  • damikesc||

    Except she was quite aware. Multiple briefings she attended over it. Fired employees over it.

  • Phos||

    "Ignorance of the Law is no excuse" is the favorite misquote of statists. This was meant to apply to real crimes with real victims. You don't need to know that hitting someone over the head and stealing their stuff has a specific legal injuction and penalty applied to know it is wrong. It is understandably wrong to any reasonable person because you would not want someone to do it to you.

    With the myriad of sometimes self-contradictory and poorly worded laws, regulations, policy, and executive orders in our modern society, "Ignorance of the Law is unavoidable."

    [Not a defense of Clinton, She was purposely avoiding following the law.]

  • Blargrifth||

    Does "ignorance of the law is no excuse" even have a basis in American common law? The only context that I have heard it in is ancient Roman.

  • Ken Shultz||

    It's all politics at this point.

    The question is whether they can dig up enough to sway public opinion--not whether Trump is guilty of any particular crime.

    If the Special Counsel can persuade the general public that a significant crime occurred, then there will be a proceeding. The politicians will then stick their fingers in the air and see which way the wind is blowing and consider the political consequences of whether to remove Trump from office.

    The real trial is happening in the court of public opinion. The politicians can theoretically go against that, but I wouldn't bet on it.

    Regardless, it won't be about whether what Trump did was technically illegal. Most of the people who Trump impeached now want him impeached because he was secretly taped bragging about pussy grabbing or because they think his positions on immigration amount to racism. We already had a trial in the court of public opinion on those charges, and Trump won.

    Whatever Trump is being accused of now is nothing compared to what he was accused of during the election campaign.

  • Jerryskids||

    But wouldn't it be interesting to see a case filed and have Trump's lawyers present a defense that Trump is incompetent to stand trial, a la the Affluenza case? It seems to me there's plenty of evidence that Trump isn't aware that his actions can be seen and interpreted by others. Perhaps he lacks the capacity to grasp the idea that the whole universe isn't some Matrix-y version of The Trump Show with himself as the only real person and everybody and everything else merely a scripted construct lacking free will whose only purpose is to provide an object with which Trump can interact.

  • Fist of Etiquette||

    "In our system of law, there's a thing called mens rea," he said, referring to the state of mind required for a conviction.

    "Well, obviously not for you little people, but for the animals like Clinton or Trump, the animals which Science has proved deserve those apples and that milk, they get to use mens rea as a defense for illegal acts."

  • Tony||

    The best defense of Trump I saw this morning on TV was that Hillary Clinton did a shady uranium deal with Russia. So he's got real winners at bat for him.

  • Red Rocks Baiting n Inciting||

    The best defense of Trump is that high-powered government officials clearly don't get locked up for questionable ethical and legal behavior, which should cause anyone with more than two working brain cells to resist the centralization of such power to begin with.

  • Tony||

    You people can find evidence for your stupid political worldview in a grilled cheese sandwich.

  • Philadelphia Collins||

    Plead the 5th and destroy the hard drives. It's worked before.

  • Murgatroyd||

    Nonsense.

    Everyone knows that grilled cheese sandwiches are revolutionary anarcho-syndicalist, not libertarian.

  • Tony||

    I thought they were mostly Catholic.

  • Red Rocks Baiting n Inciting||

    You people can find evidence for your stupid political worldview in a grilled cheese sandwich.

    And you freaks can find justification for yours in every kindergarten classroom.

  • Brian||

    Speaking of "real winners"...

  • Cynical Asshole||

    If Trump was acting "corruptly," as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why would he publicly condemn the Russia investigation before and after firing Comey?

    When it comes to all things Trump, I assume Occam's Razor - that he's acting out of stupidity/ incompetence - until proven otherwise.

    They seem like the actions of a man who is only beginning to figure out how a president is supposed to behave.

    ^This^ I suspect he's so accustomed to running his business in a "whatever I say goes" manner and has been largely surrounded by suck-ups and yes men for so long that he's not used to having anyone push back on him, and he's especially not accustomed to having people tell him no. So when he asked Comey to quietly drop the Flynn investigation* and Comey said no, he just figured he could fire him and it would be no big deal. After all, he's "the boss," right? Why can't he just fire anyone who pisses him off?

    *if that really happened - we still haven't actually seen the alleged memo.

  • Tony||

    Trump's Razor is actually a thing now. Assume stupidity unless proven otherwise.

  • Citizen X - #6||

    Hey, that's how i've been reading your comments for years, and it works!

    Also, it's called Hanlon's Razor, though it may have first been formulated by Goethe in 1774.

  • Philadelphia Collins||

    Wipe the servers clean. Like, with a cloth.

  • Tony||

    Thank god we dodged the bullet of a potus who used private email. It'd be nothing but scandal!

  • damikesc||

    Still lying?

    "Private email" indicates Gmail.

    She didn't do that.

    And you know that.

  • Gandydancer||

    She had a private (non .gov) email address and server. Sounds like "private email" to me. Gmail would have been more secure.

    It anyway ended up on a server in an office building's bathroom closet and on Weiner's laptop, neither of which was an authorized location, so her intent to put it there was exactly the mens rea Comey lied about. What's your point?

  • x'); DROP USER Tony;||

    And by 'used a private email', you of course mean 'operated an illegal and completely unsecured server in her bathroom, through which classified information at the highest level passed, and was almost certainly hacked by most of the key malignant actors worldwide, removing her work emails from their legally required FOIA-request-availability, and then deleting half of them (including more with classified information) while they were under subpoena.'

  • Tony||

    That's mostly lies, but again, I was expressing relief that at least we are blessed with a scandal-free presidency.

  • x'); DROP USER Tony;||

    "Scandal-free presidency"

    Yeah, I remember those. From here in the real world we inhabit, where they actually happened at one point. Yep.

    And you're stupid enough to think this is a defense of Trump. You don't even realize how much your naked sockpuppetry, and that of your kind, empowers the stupid motherfucker.

  • x'); DROP USER Tony;||

    Also, 'mostly lies'? Name the lies.

    If you want, you could quibble on the use of the word 'illegal', but as someone who spent four years handling TS SCI+, I know what I know.

    But every goddamn bit of it supportable by facts. If you can show otherwise, show otherwise, you lying piece of shit.

  • x'); DROP USER Tony;||

    I must say though, just from a point of view of being a dishonest person, got to give you props for how you reduce arguments so succinctly simply by sucking every bit of the truth out of them.

  • Tony||

    It is impossible to argue with someone whose brain has been pickled by FOX News horseshit. Nonetheless, even you should be able to see the stupidity in how obsessed everyone was with the Clinton email nonscandal considering we now have a president who's a fucking moron and probably committed treason via stupidity.

  • x'); DROP USER Tony;||

    I never watch FOXNews. I don't even have cable. I know the better places to look for the news, because I've lived in the news.

    And again, just to save the bandwidth, I'm neither Republican nor a Trump supporter nor a conservative of any stripe.

    Binary thinking. Try again, stupid.

  • Tony||

    So you're an idiot by convoluted means. Congratulations?

  • Red Rocks Baiting n Inciting||

    It is impossible to argue with someone whose brain has been pickled by FOX News horseshit.

    it's also impossible to argue with someone who's never held a security clearance in their life but thinks they understand how the rules work because their left-wing moron klatch said so.

  • Dallas H.||

    Also impossible to argue with someone that will just call provable and sworn facts a bunch of lies and the result of watching Fox News. There is no attempt at debate or understanding. Not even an acceptance of proven reality. Just ad hominems all the way down.

  • Murgatroyd||

    Comey's reference to mens rea with regards to the Clinton email scandal was a bit of a misnomer. He acknowledged that Clinton's handling of the emails violated the requirements of 18 USC 793. It is also incomprehensible that Clinton was not aware that her email server existed, or that she didn't know that the storage of State Department emails and classified information on a private server was wrong. As the Secretary of State, she had clearly be briefed on the the nature of classified information and on proper handling of that information.

    Comey specifically used mens rea to reference the fact that Clinton didn't intend to purposefully transmit the classified information in a way to harm US interests, such as by providing it to another country. Essentially, he stated that Clinton violated the law and knew that her actions violated the law, but since she didn't intend for anything bad to happen then this doesn't matter. This does not clear her under the principle of mens rea, since she knew that she was violating the law. Proving that would have been the job of the hypothetical prosecutor who would have charged her, and it wouldn't be very difficult to prove.

  • Murgatroyd||

    Damn HTML tags...

  • GiveMeLibertyOrHandouts||

    "Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails."

    Including? Exactly what else are they accused of? Unless they hacked the voting machines or similarly impacted the actual vote tally I'll never understand what the big deal is.

    They should get a freakin medal for exposing the corruption of the DNC.

  • White Hispanic||

    so true...So far the FBI and CIA have provided zero evidence that Russia interfered in our Presidential election. There is more evidence that the Clintons and the DNC rigged the Democratic primary, yet this story was mostly ignored by the press.

  • GiveMeLibertyOrHandouts||

    "Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails."

    Including? Exactly what else are they accused of? Unless they hacked the voting machines or similarly impacted the actual vote tally I'll never understand what the big deal is.

    They should get a freakin medal for exposing the corruption of the DNC.

  • damikesc||

    Remember, the Dems --- 55% as of now --- believe that the Russians actually hacked the election results.

  • Trig27||

    Irrelevant. Nixon won the 1972 election with over 500 electoral votes. Nobody ever said "if it weren't for that break-in at the hotel, Nixon wouldn't have won."

  • Stormy Dragon||

    Did Trump Know Enough to Obstruct Justice?

    So you're suggesting Trump use The Enron Defense?

  • FreeRadical||

    I was in the military and worked on a couple sensitive programs for a contractor. And we had multiple briefings on the ins and outs of classifications and the consequences of violating them. We were told that even unknowing violations like having a thumb drive in your pocket and then walking into a secure server room was grounds for dismissal and/or prosecution. If you accidentally left a classified document out on your desk, same thing.

    The briefings made the mens rea defense implausible.

    It is unthinkable that Clinton and Trump didn't have these briefings. Clinton should have been prosecuted. And so should Trump if something similar happened. However, both of them are classification officials, which means they can decide what's classified or not. So I don't know if that could come up.

  • Gandydancer||

    Trump is, Clinton wasn't. "...the secretary of state isn't the arbiter of information that originated from another agency." http://www.politifact.com/pund.....nfo-state/

  • FreeRadical||

    Thank you. And as the article says, the the actual higher-ups including the President rarely if ever make classification determinations.

    But I don't think that would stop them from playing that card if they could get away with it.

  • Azathoth!!||

    There is no evidence that Russia 'tampered' with the election.

    There is no evidence that Trump or his team was involved in that non-existent tampering.

    There is no evidence of any crime committed by Trump whatsoever.

    There was no justice to obstruct.

    Trump did nothing wrong.

  • Heraclitus||

    This is an apples to oranges comparison. In Clinton's case it is intuitively obvious that she did not intend to disseminate classified information. What would that even mean in her case? It would mean that there was a piece of classified information that she wanted to get into the hands of someone and she felt that using a personal server would be the way to do it. Yeah right. Occam's razor applies here.

    In Trump's case it is very intuitively obvious why he would want to obstruct justice. To say he was just being stupid and had no intent is way to charitable. How many times do we keep apologizing for this guy? Not only does he act like a child but now we are saying he shouldn't suffer consequences because he is too stupid and childlike to understand what he is doing is wrong. Even if he did not collude with Russia he is doing everything possible to avoid figuring out who meddled in the election. If it was the Chinese or a 400 pound guy one would think, given the gravity of the situation, he would want to investigate. This, from the guy who wanted to lock Clinton up. So motive is obviously there.

  • Gandydancer||

    "Even if he did not collude with Russia he is doing everything possible to avoid figuring out who meddled in the election." Nobody did, and it is perfectly within Trump's authority to fire Comey or the special prosecutor if they're genning up a witch hunt in his estimation.

    The law prohibited Clinton from moving classified information to an unauthorized location, which she clearly intended to do. Whether she intended to "disseminate" it is neither here nor there, legally. Or, to be more precise, it would violate different laws than anyone proposed charging her under.

  • FreeRadical||

    See my post above. Clinton obviously and absurdly violated the laws and procedures pertaining to handling classified information. So did anyone who maintained the hardware or sent a classified email to an insecure email address.

    As for Trump, I can't wait to learn what the investigation finds out.

  • BYODB||

    Anyone want to talk about the fact that the witch hunt started with FISA warrants, and the individuals names were not redacted from intelligence reports due to last minute rule changes on behalf of the Obama administration? Or about how Hillary zeroed in on Trump being a Russian stooge during the general election, and we know that people close to the Clinton campaign had access to these reports and they admitted to wanting to 'spread around' the information within the halls of Government? (Presumably, expressly so that the information would eventually be leaked to the press.) We also know that those intercepts have no proof of collusion or wrong-doing on Trumps part, nor on the part of his campaign.


    Huh, guess not. I'm sure Trump won't grossly misuse that system after he's been ruthlessly attacked since before he was even elected. He's definitely not the kind of guy who holds a grudge, right? I'm sure he'll be way more circumspect in how he uses intelligence agencies who intercept and monitor all phone calls out of the United States.


    It is well known that political types of people never talk to anyone outside the country, and furthermore never say anything that could hurt them at the last minute during an election. That's just crazy talk.


    /sarc

  • Jacks61||

    Of course he knew what he was doing, it is ridiculous to believe otherwise.

  • Doug Heffernan||

    Maybe he didn't/doesn't/couldn't know enough, or care to know enough.

    But would he testify something like this: "I'm the best at ignorance. Nobody is better at ignorance than me. I say this with great surety."

    He comes off as not too bright sometimes, but he didn't just fall off a turnip train. He's particularity skilled at never blaming himself and always blaming others. Even though any ignorance on his part isn't necessarily blame-worthy of anybody, I just can't see him confessing to ignorance. He might also not know enough to obstruct a toilet, but I bet it happens a lot and it is all the plumbers fault.

  • White Hispanic||

    General Flynn has not been charged with any crimes. They have tapes of him talking with the Russian ambassador. Why are they still investigating Flynn ? If the tapes had any damning evidence they would have been leaked by now or he would have been charged.

    Comey is required to report any obstruction of justice. Not only did he not report any attempted obstruction , he testified in front of congress that there was no attempt to intervene or stop any ongoing FBI investigation. Thus Comey never considered the discussions he had with Trump to involve any attempts to shutdown his investigations.

  • Amogin||

    Ignorance of the law is no excuse. The claim that the man is just learning how to be president is just ridiculous. He is 71 years old. He campaigned for the office for over a year. He considered running twice before. He has relentlessly tweeted advice and suggestions as well as accusations about and to previous presidents. He is supposdly the business genius who created the Trump empire with only a "small $1million, loan from his father." The man may be delusional but he isn't that stupid. He has been evading the consequences of his actions since he was sent to a military academy after punching out a teacher. Why would he change now?

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