There has been considerable discussion over the last week about whether President Donald Trump committed the crime of obstruction of justice when he fired James Comey as director of the FBI.
Caution has been important in this debate because obstruction of justice is a difficult crime to prove, the beyond a reasonable doubt standard for criminal prosecution is an onerous one, and not all the facts are known.
Moreover, an assessment of potential criminal liability is just one data point in the larger discussion about Trump’s behavior and the consequences that should follow from it: even when someone can be charged with a crime, it does not necessarily follow that they should be – discretion and judgment is important here – and similarly, even if one were to determine that at present the evidence is insufficient to allege criminal conduct, that may not be the end of the discussion, as political, institutional, personnel or legislative responses may nonetheless be warranted.
In addition, it is the position of the executive branch that the president must be impeached before he is indicted, and the rules regarding impeachment are essentially what the House and Senate decide them to be. Therefore, an impeachment proceeding might assess the charge of obstruction of justice and the supporting evidence in different ways than a criminal proceeding.
However, focusing for now just on the narrow question of whether President Trump has committed the crime of obstruction of justice, there can be no question that while caution is still warranted, the case that he did just became much stronger with the news that President Trump asked Director Comey to find a way to let former National Security Advisor Michael Flynn “go,” apparently referring to the ongoing criminal investigation of Flynn.
How might a prosecutor analyze the potential charge and the evidence in this case?
18 U.S.C. § 1512 states that “Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so, [has committed a crime].” The statute stipulates that an official proceeding need not be pending or about to be instituted at the time of the obstruction.
Crimes are typically analyzed in terms of acts ( actus reus ) and intent ( mens rea ). In this case there are now two potential “acts” of obstruction: President Trump’s request to Comey to drop the investigation against Flynn on February 14, 2017, the day after Flynn resigned as National Security Advisor, and Trump’s subsequent firing of Comey on May 9, 2017. Both acts can be characterized as attempts to obstruct, influence or impede the investigation into Flynn.
The more difficult issue will be to prove Trump’s intent. A “corrupt” intent requires proof that Trump acted with an improper purpose, an intent to obstruct the investigation as opposed to a more benign, lawful intent. Intent can be proven by both direct evidence (e.g. statements of the alleged obstructer concerning his or her intent) and/or by circumstantial evidence (e.g. conduct or actions which reveal the alleged obstructer’s intent). To determine intent, prosecutors will look at all the available evidence, concerning the acts themselves but also Trump’s statements and conduct before and after the acts.
And here some words of caution about evidence are warranted. First, not all the facts are known, and some of the evidence is disputed. Additional evidence will emerge which could change the overall picture, or put a very different light on known facts.
Second, evidence can look one way in a public discussion or even during an investigation, and a very different way in court. Criminal trials – because of the adversarial process, the stakes, and the burden of proof – invite a close and demanding analysis of the evidence that can be difficult to replicate outside of court, and suddenly evidence that once seemed clear and compelling can come to be viewed as much more equivocal.
That’s why good prosecutors will spend many sleepless nights thinking about all the ways their evidence might be challenged by defense counsel or viewed differently by others, and all the ways their cases might go wrong.
Third, in cases such as this, beyond a reasonable doubt really means something, and requires actual “proof” of the alleged conduct and intent, and not just a “belief” that something is so.
With those caveats in mind, the evidence as it now stands presents a compelling picture of a corrupt intent to obstruct justice. In analyzing the evidence, prosecutors will consider what evidence exists that establishes such an intent, and whether they can disprove beyond a reasonable doubt all potential benign and lawful intents.
Concerning Trump’s conversation with Comey on February 14, 2017, the day after Michael Flynn’s firing, the prosecutors would start with what Trump allegedly said to Comey. According to The New York Times, Comey wrote a contemporaneous memo recording that Trump said, “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.”
Trump further told Comey that Flynn had done nothing wrong, according to the memo.
Comey apparently made the contemporaneous record of the conversation because he perceived Trump’s words to be an improper attempt to influence an ongoing investigation. He also reportedly shared the memo with a small circle of FBI and Justice Department officials, further evidencing his concern.
Already this is pretty damning evidence, if true. Trump (or his lawyers) might argue that Trump was merely trying to put in a good word for Flynn, as a kind of character reference, or was merely trying to assist the investigation by telling Comey that as far as he (Trump) knew, Flynn had not engaged in any wrongdoing.
But this interpretation of what Trump said is belied both by Trump’s words and his conduct. Trump could have said, but did not, words to the effect of, “I’m not trying to interfere with your investigation, but for what it’s worth, I think Flynn is a good guy and I haven’t seen him engage in any wrongful conduct.” That would have been very different.
Instead, what Trump reportedly said, repeatedly, was that he hoped Comey would let “it go,” i.e., drop the investigation.
The difference is not merely semantic: Trump’s focus was not on providing information to the investigation, but on ending it.
Moreover, Trump’s words must be considered in context and in light of his conduct. According to The New York Times , Comey was at the White House for a national security meeting and Trump asked the others in the room, including Attorney General Jeff Sessions and Vice-President Mike Pence, to leave before speaking to Comey about Flynn.
If Trump were acting for a benign purpose, why did he ensure that there were no witnesses to the conversation? What was he trying to hide?
Trump’s conduct is strongly suggestive that even he knew what he was doing was improper. Remember too that according to sources, Trump asked Comey to have dinner shortly after Trump became president and, again without anyone else present, asked Comey several times if Comey would declare his loyalty to Trump. If true, this exchange indicates Trump’s belief that Comey had a duty to protect Trump’s interests and provides additional evidence about Trump’s mindset when he asked Comey to let the Flynn investigation go.
Moreover, as Andy Wright has written, the Trump-Comey conversation after Flynn’s firing took place against the backdrop of a clear Trump administration policy against contacts between the White House and the Justice Department, with an exception principally for national security matters, not apparently applicable in this case.
In other words, Trump was not blundering here into uncharted waters, but was acting in direct contravention to his own administration’s policy concerning such contacts.
Finally, to the extent Trump might claim he was merely trying to vouch for Flynn’s character, it must be remembered that Trump had just fired Flynn the day before because Flynn had lied to Vice President Pence about his conversation Russian Ambassador Kislyak, and Trump was already on notice that Flynn may have violated federal laws.
So, on what basis was Trump saying that Flynn was a “good guy”, and what does that even mean exactly? The available evidence does not indicate that Trump was trying to provide relevant information to Comey, but that instead his focus was simply on ending the investigation.
Trump’s intent is further elucidated by his subsequent comments about Flynn and the FBI investigation. Trump tweeted that “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media and Dems, of historic proportion!”
Even just a grant of use immunity to Flynn for his testimony would likely foreclose his subsequent prosecution because of the difficulty of establishing that such a prosecution was based on independent evidence. Further, in tweets and interviews, Trump has repeatedly denigrated the investigations of ties between his campaign and Russian attempts to influence the election as baseless, a “total hoax,” and a waste of money. These statements further indicate Trump’s lack of regard for the investigations and his wish to end them.
Then on May 9, Trump abruptly fired Comey as Director of the FBI. This act provides further evidence of Trump’s intent when he asked Comey to drop the Flynn investigation back in February.
It would be one thing if Trump offered his two cents about the investigation to Comey, and then left Comey alone to conduct his investigation free from influence. But that’s not what happened.
As the investigation continued, Trump apparently became fed up, and decided to fire Comey. In other words, in assessing the alleged acts of obstruction and Trump’s intent, it is essential to consider the whole picture, not just isolated pieces of evidence.
So, what was Trump’s motivation in firing Comey? Trump answered that question himself. He told Lester Holt in an NBC interview that he had decided to fire Comey even before he got the Justice Department recommendation to do so, and he revealed what he was thinking when he made the decision:
And in fact, when I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.
It is important that in the same interview, he said that he wanted someone “competent” to head the FBI, wanted the investigation to be “done properly,” wanted to get to the “bottom” of it and would not interfere with the investigation.
If one looks just at Trump’s interview, it would be hard not to give him the benefit of the doubt and conclude that when he spoke about thinking about the Russia investigation in connection with firing Comey, he was speaking carelessly, and that considering all that he said in the interview, there is insufficient evidence to show an intent to interfere with the FBI’s investigation.
However, in the larger context, Trump’s statements in the NBC interview begin to look more incriminating.
First, now we know that the firing of Comey came after Trump privately sought Comey’s loyalty, after Trump privately asked Comey to drop the investigation, and after Trump repeatedly criticized and belittled the investigation.
Trump’s statements and conduct, as a whole, are consistent with Trump firing Comey as a way to control or end the investigation, and suggest that his statements insisting that the investigation be done properly were merely an effort to muddy the waters and disguise his true intentions.
(And if you are wondering if people can make incriminating and false exonerating statements in the same interview or statement, it happens all the time).
Further, the evidence indicates that before his NBC interview, Trump sought to create a false narrative for the firing of Comey. He enlisted Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein to come up with reasons for Comey’s firing.
Rosenstein then hastily wrote a brief and thinly-reasoned memo criticizing Comey for public statements he made in connection with the Hillary Clinton email investigation, though notably, Rosenstein did not make a recommendation in the memo, leaving the decision to Sessions and Trump. Rosenstein’s memo was immediately endorsed by Sessions and then used by Trump as a justification for firing Comey.
Nobody believed this account – particularly since both Trump and Sessions had previously praised Comey for making the very same statements – and the phony cover story fell apart almost instantly. When Trump gave his interview to NBC a day later, he put an end to the false narrative, admitting that in fact the recommendation from the Justice Department was not the reason he had fired Comey.
This context is significant because normally people create false stories when they have something to hide. Now it may be that the false account was created for political reasons, because Trump wanted to avoid the perception that he was interfering with the FBI investigation when in fact that was not his intention, but Trump’s subsequent statements do not support such an inference.
On the contrary, they reveal his desire to end the investigation.
If Trump’s concern were to avoid the perception of interference with the criminal investigation, it is impossible to believe that he would admit that he was thinking of the Russia investigation when he decided to fire Comey. The subsequent exculpatory statements in the interview, about doing the investigation properly, are things that you would expect the president to say in such an interview.
The statement about why he fired Comey, on the other hand, is unexpected and contrary to norms, and therefore has to it the ring of truth. As a “statement against interest,” exposing Trump to potential criminal liability for obstruction of justice, Federal Rule of Evidence 804(b)(3) would likely deem Trump’s incriminating explanation sufficiently reliable to be admitted into evidence as an exception to hearsay (it would also be an “admission” under the Rules if Trump were the defendant, but the point is that the evidence rules presume some measure of reliability in statements that are “against interest,” as this one was).
Finally, it is important to note that many of the facts regarding Trump’s dinner with Comey and his meeting with Comey on February 14 are disputed.
Trump claimed in the NBC interview that Comey asked for the dinner the White House has denied that Trump asked for Comey’s loyalty. With regard to the meeting about Flynn, the White House has denied that Trump asked Comey to end the investigation.
In resolving these disputes in the evidence, and assessing what could be proven at trial, prosecutors will consider which version of events is more credible on its face, which version is more believable in light of all the other evidence, who might have an interest to lie, whether there exists any corroboration (including contemporaneous notes, such as the memo that Comey apparently wrote concerning the February 14 meeting), and each individual’s character for truthfulness.
On this last point, Trump’s clear record of saying things he knows to be false would undoubtedly come back to haunt him.
When all the available evidence of Trump’s conduct and statements is considered together, the case is strong that he attempted to obstruct justice by seeking to end the criminal investigation of Michael Flynn.
However, too much is still unknown to reach a firm conclusion at this point.
A final determination could only be on the basis of a thorough investigation and careful consideration of all the evidence. Such an investigation is clearly warranted.
Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.