Comey Bolsters Case for Obstruction of Justice by Trump
Friday, June 09, 2017
By Marjorie Cohn, Truthout | News Analysis
Former FBI Director James Comey is sworn in during a Senate Intelligence
Committee hearing on Capitol Hill, in Washington, June 8, 2017. (Photo: Doug
Mills / The New York Times)
Without ever stating that President Donald Trump obstructed justice, former
FBI director James Comey methodically laid out the case for charging Trump
with the crime of obstruction of justice, an impeachable offense.
In written and oral testimony before the Senate Intelligence Committee,
Comey provided an explosive account of an attempted cover-up by the
president.
Obstruction of justice requires the attempt to halt an investigation with a
corrupt intent. Trump corruptly tried to block the pending criminal
investigation of former National Security Advisor Michael Flynn. The day
after Flynn resigned, the president allegedly warned 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 testified, "I took it as a
direction" that "this is what he wants me to do.... [I] replied only that
'[Flynn] is a good guy.'"
According to Comey, Trump asked Attorney General Jeff Sessions, Jared
Kushner and others to step out of the Oval Office before the president
requested that Comey drop the "open FBI criminal investigation" of Flynn for
"his statements in connection with the Russian contacts, and the contacts
themselves." Clearly, the president didn't want anyone else to hear what he
had to say to Comey. This is evidence for the case that Trump made the
request to Comey for a corrupt purpose.
Comey felt so uncomfortable after the exchange with Trump, he later asked
Sessions not to leave him alone with the president.
To read more stories like this, visit Human Rights and Global Wrongs.
Two weeks earlier, Trump had invited Comey to a private dinner at the White
House: just the two of them. Comey said the president asked him whether he
liked his job and wanted to keep it, twice demanding "loyalty" from the FBI
director. Comey testified that the president said, "I need loyalty, I expect
loyalty." Pressed by Trump, Comey said he finally assured the president he
would get "honest loyalty" from the FBI director.
Comey testified that he was puzzled by the fact that the president had, on
"multiple" occasions, told him he was doing a great job and hoped he would
remain at the post. Comey, who had repeatedly told Trump he intended to
stay, said he thought the president was trying to create a "patronage"
relationship by hinting that Comey's job depended on pledging loyalty to
Trump. "I got the sense my job would be contingent upon how he felt I
conducted myself and whether I demonstrated loyalty," Comey testified.
On two subsequent occasions, Trump called Comey and told him the Russia
investigation was "'a cloud' impairing his ability to act on behalf of the
country." Trump asked Comey to "lift the cloud."
Trump repeatedly urged Comey to "get that fact out" that Trump wasn't
personally being investigated. Comey testified, "The FBI and the Justice
Department had been reluctant to make public statements that we did not have
an open case on President Trump for a number of reasons, most importantly
because it would create a duty to correct, should that change."
When Comey didn't halt the investigation of Flynn, Trump fired him. The next
day, Trump boasted to Russian officials in the Oval Office, "I just fired
the head of the F.B.I. He was crazy, a real nut job," adding, "I faced great
pressure because of Russia. That's taken off."
The day after talking to the Russian officials, Trump told NBC's Lester
Holt, "When I decided to just do it [fire Comey], I said to myself . this
Russia thing with Trump and Russia is a made-up story."
Comey testified that he was confused when he heard the president say on
television "that he actually fired me because of the Russia investigation,
and learned again from the media that he was privately telling other parties
that my firing had relieved great pressure on the Russia investigation."
Comey added, "Something about the way I was conducting it, the president
felt created pressure on him that he wanted to relieve."
On May 12, Trump issued a veiled threat against Comey, tweeting, "James
Comey better hope that there are no 'tapes' of our conversations before he
starts leaking to the press!" Comey testified yesterday, "Lordy, I hope
there are tapes," indicating that such evidence would corroborate his
recollection of Trump's incriminating statements.
Comey testified that he had a "gut feeling" that Trump might lie about what
had transpired during their conversations. So, he memorialized them in
written memoranda. This was a new practice for Comey; he had never thought
it necessary to keep a record of his conversations with Presidents Bush and
Obama. Comey said his gut told him he couldn't trust Trump. "I was honestly
concerned [Trump] might lie about the nature of our meeting so I thought it
important to document," Comey testified.
Trump's acts constitute probable cause that he engaged in obstruction of
justice. As Philip Allen Lacovara, former Justice Department deputy
solicitor general and counsel to Watergate special prosecutors Archibald Cox
and Leon Jaworski, wrote in the Washington Post:
Comey's statement lays out a case against the president that consists of a
tidy pattern, beginning with the demand for loyalty, the threat to terminate
Comey's job, the repeated requests to turn off the investigation into Flynn
and the final infliction of career punishment for failing to succumb to the
president's requests, all followed by the president's own concession about
his motive. Any experienced prosecutor would see these facts as establishing
a prima facie case of obstruction of justice.
Obstruction of justice is a felony, which is a "High Crime." The articles of
impeachment in the cases of both Presidents Richard Nixon and Bill Clinton
included allegations of obstruction of justice.
Moreover, even if Trump's conduct did not meet the elements of obstruction
of justice, it nevertheless provides a basis for impeachment.
The Constitution provides for impeachment of the president when he commits
"High Crimes and misdemeanors." They include, but are not limited to,
conduct punishable by the criminal law.
Alexander Hamilton wrote in the Federalist No. 65 that offenses are
impeachable if they "proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated POLITICAL, as they
relate chiefly to injuries done immediately to the society itself."
The Judiciary Committee's impeachment inquiry staff during the Nixon case
wrote in 1974 that impeachment "is to be predicated only upon conduct
seriously incompatible with . the proper performance of constitutional
duties of the presidential office." Under the Constitution, the president
has a duty to "take Care that the laws be faithfully executed."
By attempting to halt a criminal investigation and then firing the FBI
director who refused to comply, Trump violated the "take care" clause of the
Constitution. Instead of taking care to enforce the laws, Trump has
endeavored to circumvent them.
Comey's written testimony "is the most shocking single document compiled
about the official conduct of the public duties of any President since the
release of the Watergate tapes," Benjamin Wittes, editor-in-chief of the
Brookings Institution's Lawfare blog, wrote.
To spur the appointment of a special counsel, Comey leaked his memos to a
friend who is a professor at Columbia Law School and asked him to make them
public. Professor Daniel Richman provided Comey's memos to the New York
Times.
On May 17, the Justice Department appointed former FBI director Robert
Mueller as special counsel to investigate "any links and/or coordination
between the Russian government and individuals associated with the campaign
of President Donald Trump" and "any matters that arose or may arise directly
from the investigation."
"I don't think it's for me to say whether the conversation I had with the
president was an effort to obstruct," Comey testified. "I took it as a very
disturbing thing, very concerning, but that's a conclusion I'm sure the
special counsel will work towards to find out the intention and whether
that's an offense."
Comey's testimony painted a clear pattern of obstruction of justice and of
Trump's failure to take care to enforce the laws. After independent counsel
Kenneth Starr concluded there was evidence of wrongdoing by President
Clinton, he turned over his findings to the House of Representatives for
impeachment proceedings. Mueller could do the same.
Copyright, Truthout. May not be reprinted without permission.
Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former
president of the National Lawyers Guild and deputy secretary general of the
International Association of Democratic Lawyers. Her books include The
United States and Torture: Interrogation, Incarceration, and Abuse; Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law and Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues. Visit her website:
MarjorieCohn.com. Follow her on Twitter: @MarjorieCohn.
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