I’m hoping to get a answer to the question of whether something would legally constitute obstruction of justice, without getting bogged down in arguing the question of whether that something is actually what happened. For purposes of this question, I’m stipulating that the following represented Trump’s genuine thinking when he fired Comey:
[ul]
[li]I know that I and my campaign did not collude with Russia, therefore there can’t be any real evidence that I/we did.[/li][li]Therefore, any investigation led by a capable and non-partisan leader would wrap things up and clear me in short order.[/li][li]Therefore, the fact that the investigation under Comey keeps dragging on shows that he’s not a capable and non-partisan leader.[/li][li]Therefore, I need to fire him and replace him with someone who is a capable and non-partisan leader.[/li][li]Once a capable and non-partisan leader is in charge, I expect that the investigation would continue but would wrap up and clear me in short order as a consequence of the facts.[/li][/ul]
Does the above constitute obstruction of justice?
Again, this is not about whether this is in fact what he was thinking (let alone whether he was justified in thinking so if indeed he was). Essentially the question is whether this hypothesis is one which leads to guilt or innocence.
[Note, this leaves aside the Dershowitz argument about whether a president can be legally responsible for obstruction for firing people and closing investigations under his authority - assume for purposes of this question that Dershowitz is wrong and that argument is not a factor.]
IANAL but I’d guess it still could be obstruction. The basic reason is that one can’t be sure about the first bullet point. Trump can know he didn’t collude, but I’m not sure how he can know the campaign didn’t collude.
It seems to me this is a bit like: A crime has been committed. A friend of mine is under suspicion. I “know” he couldn’t have done it. Therefore, to “help” police quickly get on the right track, I conceal “obviously
misleading” evidence that points in my friend’s direction.
Here is a discussion (pdf) of the various federal obstruction statutes. The most likely sticking point is that there has to be a “pending proceeding” to obstruct, and the little precedent that exists leans toward an interpretation that an FBI investigation is not a pending proceeding within the meaning of the statute.
If there were a grand jury empaneled as to Michael Flynn at the time Trump asked Comey to go easy on Flynn, and Trump knew there was one, that might qualify. In your set of facts, however, Flynn does not figure in as a basis for firing Comey, so an obstruction charge could well fail on that basis.
ISTM that the fundamental difference here is that you have no official role in investigating that crime, while Trump is the ultimate boss of the FBI director.
The argument that the president can be obstructing justice for doing something that he’s legally entitled to do (i.e. fire the FBI director) is that even if it’s technically within his rights on general grounds, it’s still obstruction if his intent is to thwart justice. The point of my question was whether the type of thinking that I stipulated qualifies as that type of intent.
In your case (I believe) it’s your actions that are at issue, not your intent, so it’s a different matter.
Since corrupt intent is the state of mind required in this case, Trump’s intent/rationale is inherently at issue in why he fired Comey or did other related acts. So, Trump’s words about what his intent/rationale was and whether that stated intent/rationale is believable and/or reasonable given the facts as they were at the time are inherently at issue as well. Accepting his words about what his intent/rationale was at face value and also then therefore assuming that this intent/rationale is the truth and reasonable makes the whole exercise pointless.
If you cut off any analysis about whether’s Trump intent was corrupt, then of course the firing could not constitute obstruction.
Well it doesn’t seem obvious to me. Because it might be that this type of motivation is itself “corrupt”, in that - bottom line - he intended to affect the course of the investigation, and in a way which benefited him.
My thinking is that this would change if he had some knowledge of the situation and some rationale for what he was doing other than pure self-interest. But I don’t know that this is a slam dunk. Not that I’m an expert or anything.
I see it from another angle. There is a whole team of FBI agents working on the investigation. And the FBI director is probably making just the “big picture” decisions. Can the underlings fill in the new director in a negligible amount of time? If so, how has justice been obstructed?
The question isn’t “Did Trump fire Comey to cover up his own wrong doing?”
The question is “Did Trump fire Comey to impede or otherwise derail an ongoing criminal investigation?”
The point isn’t whether Trump was impeding the investigation for personal benefit or not, the point is that he was acting to impede the investigation at all.
As above, Trump has full legal authority over the FBI & DOJ. If he believed that the investigation was unwarranted, then it’s a stretch to say that he was acting to “impede or otherwise derail” it in shutting it down.
Again, the argument that he was obstructing relies on corrupt intent.
I guess an analogy would be that if a President discovered that the FBI director was funneling billions into UFO investigations with no real results and the president fired him because that was just whack-a-doodle, does that count as obstruction of justice? What if it turned out later that some of the “UFOs” were actually part of a money-laundering scheme that many of the President’s close personal friends and even family were part of, and it’s pretty clear that the UFO investigation, whack-a-doodle as it was, would have revealed these schemes?
The flaw in this argument is that it can be used for any president for any action obstructing justice. All they have to to is claim that they genuinely believed the investigation was unnecessary. Essentially making all future presidents immune from obstruction of justice doesn’t seem reasonable to me.
ISTM that if it could be shown that the underlying crime occurred and that the president was aware of it, then this defense would collapse. In this case, if it could be shown that Trump was aware of (let alone involved with) collusion by his campaign, then it would be hard for him to argue that he genuinely believed that the whole issue was bogus and deserved to be shut down.
The reason the issue is relevant here is because of the possibility that Mueller will conclude that there is insufficient evidence of actual collusion but that there is sufficient evidence of Trump taking measures to shut down the investigation. In that case, the question becomes whether that type of motivation counts as obstruction.
It seems to me that you shouldn’t be able to declare that an investigation of yourself (or your campaign) is bogus and obstruct that investigation. I mean if I’m being investigated by the police, but don’t think its warranted, I’m still not allowed to interfere or obstruct their investigation. I fail to see why this standard doesn’t also apply to the president. Everyone is equal under the law (or should be).
I’m confused. I thought you stated in the OP that for the purposes of this thread you wanted to put aside the argument that the President was the head of the executive branch and has full power to direct investigations, fire people, etc.
[ul]
[li]I didn’t know that my roommates where cooking meth (bullshit).[/li][li]I didn’t know that doing so would be illegal.[/li][li]Therefore, I’m not responsible for allowing them to cook meth and not reporting them.[/li][li]So since I did not know this (more bullshit), I am not in any way responsible that the house blew up killing my other roommate.[/li][/ul]
Your insurance company would laugh in your face. Congress just nods and says, “Oh, Okay then”
No, he does not. His authority extends only to choices of top officials and budgets. The Attorney General is not subject to the President’s authority on an operational level, precisely for the purpose of keeping the Justice Department and its actions nonpolitical in the service of the country.
Why do you think Trump hasn’t fired Mueller himself? Do you know why Nixon didn’t fire Cox directly, instead of firing people who wouldn’t do it until he got to one (Bork) who would?
How much do you know about the legal case against Nixon? Because that’s exactly what it was.
Why does this keep coming up? Is that part of what Hannity is trying to spread these days as part of his Deep State nonsense?
For the same reason that a member of the Walton family doesn’t fire a Wal-Mart employee that is caught smoking weed behind the building. There is an internal structure in place to keep things running smoothly, and there would be chaos in an organization if middle or upper management were neutered by the higher ups.
However, at the end of the day, of course the President has that authority. He is the absolutely head of the Executive Branch under the Constitution. By definition, nobody who is an executive official is not subordinate to him.