Comey Statement Puts Us Closer To Obstruction of Justice
The Legal Information institute at Cornell Law School points out obstruction of justice is defined in the omnibus clause of 18 U.S.C. § 1503, which provides that “whoever . . . . 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 administration of justice, shall be (guilty of an offense).” Persons are charged under this statute based on allegations that a defendant intended to intefere with an official proceeding, by doing things such as destroying evidence, or intefering with the duties of jurors or court officers.
A person obstructs justice when they have a specific intent to obstruct or interfere with a judicial proceeding. For a person to be convicted of obstructing justice, they must not only have the specific intent to obstruct the proceeding, but the person must know (1) that a proceeding was actually pending at the time; and (2) there must be a nexus between the defendant’s endeavor to obstruct justice and the proceeding, and the defendant must have knowledge of this nexus.
§ 1503 applies only to federal judicial proceedings. Under § 1505, however, a defendant can be convicted of obstruction of justice by obstructing a pending proceeding before Congress or a federal agency. A pending proceeding could include an informal investigation by an executive agency.
David French does a pretty thorough job of examining the statement and there is more bad and ugly in it for Trump than good. This is what made Comey’s testimony so intriguing.
Why Didn’t Comey Report Trump?
Comey was rightfully concerned about Trump’s statements about Flynn being a good guy that he should let go,, but he probably rightfully interpreted 45’s request as lawful. Trump’s request on its face and by itself most likely doesn’t satisfy the elements of obstruction of justice..
Rather than comply with 45’s request, Comey consulted with his senior leadership team and decided to keep the information closely held to avoid tainting the investigation. Trump is upset that Comey won’t publicly state that Trump isn’t under investigation. He repeatedly expressed a desire that Comey say publicly what he’d apparently told Trump (and Congress) privately, that the FBI wasn’t “personally investigating” Trump. It’s obvious that 45 wants to publicly clear his name.
Comey’s Testimony Is Still Extraordinarily Damaging
Comey does in fact claim that Trump asked him for loyalty. This is appropriate behavior from an American president. The FBI director is a law-enforcement officer, loyal to the Constitution, not the president. While the request to drop the Flynn investigation is not by itself obstruction of justice, by providing sworn testimony of the request, Comey is beginning to make the case against 45 for obstruction.
We now have on-the-record testimony alleging that Trump made a request to drop at least a portion of the FBI’s Russia investigation, a request that he cleared the room to make. We have on-the-record testimony that the director refused Trump’s request. We know that Trump then fired Comey, provided a false pretext for doing so, and later confirmed that he terminated Comey at least in part because of the Russia controversy.
Moreover, the idea that Trump fired Comey not to stop the investigation but rather for his failure to publicly state that Trump wasn’t under investigation hardly clears the cloud from Trump’s conduct. The request, in the midst of an ongoing investigation, was improperly made through improper channels. The end of Comey’s testimony refers right back to Trump’s initial request for “loyalty.” After Trump again asked Comey to publicly state that Trump wasn’t under investigation, Comey urged Trump to ask the White House counsel to take his request to the Department of Justice.
The Testimony Paints An Ugly Picture of the President
Trump’s interactions with Comey were incessant and inappropriate (to the point of ordering everyone out of the Oval Office before making his request that Comey drop the Flynn investigation). Comey notes that he spoke only twice to President Obama in 8 years, once when the president called him to say goodbye. By contrast, he had nine private conversations with President Trump in a mere four months. We have evidence of multiple meetings where the president directly tried to influence the conduct of an FBI investigation. Witch hunt? I think not.