By Lynda Work

“Throughout history, it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph.”

Haile Selassie

In the midst of President Richard Nixon’s bid for re-election in 1972, associates of his campaign team broke into the Democratic National Committee headquarters in Washington, D.C. in order to plant listening devices and gather sensitive information. Nixon denied any involvement in what appeared to be a cover-up attempt, but subpoenaed White House recordings proved otherwise. After articles of impeachment were brought to the House floor — alleging obstruction of justice, among other crimes — Nixon resigned.

Twenty-four years later, President Bill Clinton also faced an obstruction of justice charge and one charge of perjury for lying about a sexual encounter he had with a White House intern (to which he would later admit). These charges formed the basis of President Clinton’s impeachment, although he was ultimately acquitted by the Senate and served the remainder of his term.

The crime of obstruction of justice is considered a crime against justice itself, since it undermines the validity of the legal system.

With all the widespread speculation on the abrupt firing of former FBI Director James Comey being connected to obstruction of justice, it is a good time to review the legal definition of obstruction of justice and how it could apply.

It comes down largely to motive and actions taken by those in the White House.  If President Trump orchestrated the firing to subvert or undermine the integrity of the investigations into the Trump campaign’s possible coordination with Russia, it could amount to obstruction of justice. Attorney General Jeff Sessions or Deputy Rod Rosenstein could also be in legal or political jeopardy if they knowingly participated in the plan.

Obstruction as it applies to Donald Trump

Many legal scholars argue that the president’s role as a law-enforcement officer does not give him the right to shield himself and his associates from any legal accountability.

In a 108-page analysis of the potential obstruction case against Trump, the Brookings Institute summarized the types of actions that could amount to presidential obstruction of justice:

Attempts to stop an investigation represent a common form of obstruction. Demanding the loyalty of an individual involved in an investigation, requesting that individual’s help to end the investigation, and then ultimately firing that person to accomplish that goal are the type of acts that have frequently resulted in obstruction convictions.

In addition, to the extent conduct could be characterized as threatening, intimidating, or corruptly persuading witnesses, that too may provide additional grounds for obstruction charges.

While one particular action might not seem that significant, it could help prosecutors establish intent — an important consideration in obstruction cases.

For Trump, there is plenty of public record that experts say could add up to an obstruction charge, ranging from the firing of Comey to Twitter attacks that mostly forgotten.

The particular acts that pertain to Trump

What incidents could help make the case?   Here is a recap:

One week after the inauguration, Comey was summoned to the White House for a private dinner with the president. In his June Senate testimony, Comey said Trump started the conversation by asking if he wanted to stay on as FBI director, which Comey found “strange” because they had already discussed the matter twice, and Comey had said he intended to remain in the position. Comey said Trump noted that many people wanted the job, so he assumed the dinner was “at least in part, an effort to have me ask for my job and create some sort of patronage relationship.”

Comey said Trump told him, “I need loyalty  — I expect loyalty.” Comey said he did not respond, and Trump circled back to his demand two more times during their conversation, eventually getting a promise of “honest loyalty” from the director.

Trump denies asking for Comey’s loyalty, but, if true, it could be interpreted as him urging the director to demonstrate fealty by backing away from the Russia probe, and intimating that Comey’s job was on the line.

The timing of the meeting is also an important consideration. Comey said he received a call around lunchtime on Jan. 27 inviting him to dinner that night. That just happens to be a day after former acting attorney general Sally Yates met with White House counsel Don McGahn to inform him that Vice-President Pence and other officials had been making public statements about Michael Flynn “that we knew to be untrue.” Yates warned that this opened the national security adviser up to blackmail by the Russians.

Trump fired Flynn on Feb.13, for supposedly lying to Pence. Comey testified that, after an Oval Office meeting with a large number of advisers the next morning, Trump asked everyone but Comey to clear the room. Comey said Trump told him he wished to discuss Flynn.

“He is a good guy and has been through a lot,” Trump said, according to Comey. “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.”

Comey said he believed the president was asking him to “drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.”

This is one of the clearer examples of Trump allegedly trying to influence an investigation – and sending everyone else out of the room could help establish nefarious intent.

Defining Obstruction

What is obstruction of justice?

Several federal statutes criminalize actions that impede official investigations. While some examples of illegal ways to thwart the justice system are specific — like killing a witness or destroying evidence — the law also includes broad, catchall prohibitions.

For example, Sections 1503, 1505 and 1512 of Title 18 have variants of language making it a crime if someone corruptly “obstructs, influences or impedes any official proceeding.”

Could that cover asking the F.B.I. director to drop part of an investigation, and later firing him?

In theory, yes. Such statutes were broadly drafted. According to Julie O’Sullivan, a former federal prosecutor who now teaches white-collar criminal law at Georgetown University, the “power relationship between a president and the F.B.I. director could elevate a request to shut down a case into an act that amounts to impeding an official investigation.”

Did Trump have lawful authority to fire Comey?

Yes. But courts have ruled that otherwise lawful acts can constitute obstruction of justice if done with corrupt intentions.

As an example, in a 1998 case a federal appeals court upheld the conviction of a lawyer who had filed legal complaints and related motions against a government agent who was investigating an illegal gambling operation. The court ruled that the defendant’s “nominally litigation-related conduct” was unlawful because his real motive was “to safeguard his personal financial interests” in the corrupt enterprise.

Lying to law enforcement or Congress during an investigation can also be obstruction and constitute a criminal offense.

Under 18 U.S.C. § 1505, a felony offense is committed by anyone who:

“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 under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”

An accompanying code section, 18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information”

This is where obstruction of justice intersects with the false statements law. If someone knowingly and willfully make a false statement of material fact in a federal government proceeding, he or she has potentially violated § 1001, and when adding the objective to influence, obstruct, or impede an investigation, § 1505 may also have been violated. Perjury can intersect with obstruction of justice in the same way.

Under the statute, a “proceeding” can be an investigation. Section 1503 criminalizes the same conduct in judicial proceedings. So, obstruction during an investigation might violate § 1505, while if that same investigation leads to a criminal prosecution, obstruction during the prosecution itself would violate § 1503.

The individual also has to know that a proceeding is happening in order to violate the statute and must have the intent to obstruct—that is, act with the purpose of obstructing, even if they don’t succeed.

The Comey firing …

The firing of James Comey would constitute a different kind of obstruction, even more directly covered by the statute.

Criminal charges are especially unlikely in this context, however, because (1) the burden of proof makes proving obstruction in this context difficult, and (2) discretion over criminal investigation and prosecution is committed to the Department of Justice, headed by Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, both of whom recommended Comey’s dismissal.

First, the criminal offense is itself difficult to prove in this context. The statutory language is broad: it covers any attempt, even unsuccessful, to “influence, obstruct, or impede” the administration of the law in a pending proceeding.

The crime is found on proof of three elements:

“(1) there was a proceeding pending before a department or agency of the United States;

(2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and

(3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

If applied to the president and his staff, the first two elements could be locked in. First, courts have given “proceeding” a broad definition. As the DOJ Manual notes, “the Sixth Circuit held that the term ‘proceeding’ is ‘of broad scope, encompassing both the investigative and adjudicative functions of a department or agency.’” The Russia investigation pretty clearly counts.

Second, Comey confirmed that the investigation was ongoing—in extremely public and publicized congressional hearings. So there is no excuse to make claims that that the White House did not know or “have a reasonably founded belief” that there was an investigation.

The question mark centers around the third element. One must not merely “influence, obstruct, or impede” but also do so corruptly. Under § 1515(b), a corrupt state of mind requires intent: “acting with an improper purpose.”

Ultimately the answer goes to the motives.  Did the president or attorney general intend for Comey’s firing to “influence, obstruct, or impede” the Russia investigation? Even if they had other reasons or goals—including perfectly lawful ones—if obstructing or impeding the Russia investigation was a goal, that would constitute obstruction of justice.

Multiple circuit courts have concluded that under §§ 1503 and 1505, “although the defendant need not succeed in his attempt to obstruct justice, his conduct must be such ‘that its natural and probable effect would be the interference with the due administration of justice.’” This requires specific intent to obstruct or impede an investigation.

In the context of any criminal proceeding, where the burden of proof is beyond a reasonable doubt, the possible existence of other motives would likely make obstruction of justice difficult to prove.

Impeachment?

In addition to the burden of proof, criminal enforcement by the Department of Justice is highly unlikely. Sessions and Rosenstein each endorsed reasons for the dismissal. Naturally, they are unlikely to commence criminal enforcement, though the DOJ Inspector General, an independent entity within the department tasked with investigating misconduct with the department, might be a mechanism for investigation, but an Inspector General investigation would not cover actions by the president.

Thus, the only viable enforcement mechanism is likely impeachment. Obstruction of justice formed the first article of impeachment of President Nixon and the third article of impeachment of President Clinton. In both instances, the articles contained specific allegations amounting to a pattern of obstruction. Both articles alleged false statements by the president, concealing evidence, and counseling witnesses to lie, among other allegations.

There is also the problem of asking intelligence officials to push back against the FBI’s collusion probe. Around the same time as the Comey incident, Trump reportedly called Daniel Coats and Admiral Michael Rogers, director of the National Security Agency, and asked them to publicly deny that there was any evidence suggesting collusion between the Trump campaign and the Russian government. Days earlier, Comey had confirmed for the first time that the Trump–Russia link was under FBI investigation.

Both declined to get into the matter during their Senate testimony in June 2017, with Rogers stating he had never been directed to do anything he believed to be illegal, immoral, unethical, or inappropriate.  Comey also testified that Trump called him on March 30 and complained that the Russia probe was hurting his administration.

“He asked what we could do to ‘lift the cloud,’” Comey said, adding that when he reiterated that Trump wasn’t personally under investigation, the president said, “We need to get that fact out.”

There is also the question of firing Preet Bharara . Most new presidents generally ask all U.S. attorneys to step down, but Trump demanded their resignations in March -after telling Preet Bharara, the United States Attorney for the Southern District of New York in November that he wanted him to stay on.

Months later, Marc Kasowitz, Trump’s personal lawyer in the Russia investigation, reportedly bragged that he played a central role in getting Bharara fired, by telling Trump, “This guy is going to get you.” Bharara later hinted that he was investigating some Trump-related matter.

Even though the evidence of alleged obstruction appears to be building up, it takes careful analysis and investigation – if the investigation isn’t blocked.

While those defending the president may claim that expressing a “hope” that an investigation will end is too vague to constitute obstruction, we show that under applicable precedents such language is sufficient to do so. In that regard, it is material that former FBI Director James Comey interpreted the president’s “hope” that he would drop the investigation into Flynn as an instruction to drop the case.

The fact that Comey ignored that instruction is beside the point under applicable law. Potentially misleading conduct and possible cover-up attempts could serve as further evidence of obstruction.

The president’s actions that might qualify as such evidence include: fabricating an initial justification for firing Comey, directing Donald Trump Jr.’s inaccurate statements about the purpose of his meeting with a Russian lawyer during the president’s campaign, tweeting that Comey “better hope there are no ‘tapes’ of our conversations,” despite having “no idea” whether such tapes existed, and repeatedly denouncing the validity of the investigations.

The jury is still out on the actuality of obstruction of justice by the president and his administration. Time will tell.

For information on statutes and analysis of obstruction of justice, please visit:

(Congressional Research Service) Obstruction of Justice, An Overview of Federal Statutes

(Brookings Institution) Presidential Obstruction of Justice: The Case of Donald J. Trump