This post first appeared on Bill Moyers & Company on June 14, 2017
The legal principles are straightforward. Anyone who corruptly endeavors to influence, obstruct, or impede a federal investigation or judicial process commits a felony. And no person is above the law—not even the president. The simplicity of those notions has become lost.
Legal commentators’ competing views on whether Trump has obstructed justice haven’t helped. Rather than ascribe nefarious motives to either side of the debate, attentive citizens might consider this possibility: The experts are looking at the same problem from two different legal perspectives.
One perspective emphasizes the forest, where effective jury trial lawyers dwell rhetorically. The best of the lot are great storytellers. They chronicle facts in a compelling narrative, starting with the opening statement: “The story of this case begins on…” That gives jurors a way to think about the evidence as they hear it throughout the trial. Closing arguments become a final opportunity to reinforce the story with evidence.
Another perspective focuses on trees. In criminal cases, for example, a judicial ruling that a confession is inadmissible can gut the prosecution’s entire effort. A suppression hearing before a judge requires dissecting a particular episode—how the police interrogated the accused. But the larger question—whether a defendant is guilty of the underlying crime—is irrelevant to that exercise.
The two perspectives revealed themselves in the now infamous Senate Intelligence Committee hearing at which former FBI Director James Comey testified.
Sen. Mark Warner (D-VA, JD, Harvard, ’80) opened with his view of the forest:
“We’re here because a foreign adversary attacked us right here at home, plain and simple, not by guns or missiles, but by foreign operatives seeking to hijack our most important democratic process—our presidential election.”
Warner then set forth his brief summary:
- Trump and his staff denied that the Russians were ever involved in the attack, and then falsely claimed that no one from Trump’s team was ever in touch with any Russian: “We know that’s just not the truth,” he said.
- Candidate Trump expressed “an odd and unexplained affection for the Russian dictator, while calling for the hacking of his opponent.”
- The FBI was ultimately responsible for conducting the Russia investigation. But “the president himself appears to have been engaged in an effort to influence, or at least co-opt, the director of the FBI,” starting with a request for Comey’s personal loyalty on Jan. 27.
- On Feb. 14, the day after Trump fired NSA Mike Flynn, the president asked the attorney general to leave the Oval Office so he could express privately his “hope” that Comey could see his way clear “to letting Flynn go.” On March 30 and April 11, Trump asked Comey to “lift the cloud” of the Russian investigation.
- After Comey’s refusals, Trump fired him for stated reasons that
“didn’t pass any smell test.” The cover-up lasted about 24 hours—until Trump “made very clear that he was thinking about Russia when he decided to fire Director Comey.” Then reports surfaced that the day after firing Comey, Trump even told Russia’s ambassador and foreign minister that Comey—the nation’s top law enforcement officer—was a “nut job” whose departure relieved “great pressure” relating to Russia.
“This isn’t happening in isolation,” Warner concluded. “At the same time the president was engaged in these efforts with Director Comey, he was also, at least allegedly, asking senior leaders of the intelligence community to downplay the Russia investigation or to intervene with the director.”
Republicans on the committee went after trees, starting with a single word—“hope”—in a single conversation between Trump and Comey the day after Flynn’s termination: “I hope you can let this go.”
“I took it as a direction,” Comey said to the committee, believing that Trump wanted him to drop the FBI’s investigation of Flynn. “I mean, the president of the United States, with me alone, saying, ‘I hope this—’ I took it as this is what he wants me to do.”
Fastening Trump’s fate to that word, Sen. Jim Risch (R-ID) (JD, Idaho, ’68) tackled Comey as a criminal defense lawyer would. “You may have taken it as a direction,” Risch said, “but it’s not what he said.” Risch then volunteered that no one had ever been prosecuted based on saying, “I hope.” (Although Comey couldn’t think of an example at the time, when Collin McDonald robbed several banks in 2003, he received a longer sentence for obstructing justice because he told his girlfriend, “I hope and pray to God you didn’t say anything about that weapon.” There are plenty of other examples.)
Similarly, Sen. John Cornyn (R-TX, JD, St. Mary’s Univ. ’77, LLM, UVA, ‘95), who was on the short list to replace Comey as FBI director, followed Risch’s line. “When you say ‘I hope you can see your way to letting this go,’ that’s not an order,” Cornyn told reporters.
Likewise, some commentators would exonerate Trump on a purely legal issue: The president’s power as head of the executive branch allows him to fire the FBI director for any reason. Generally speaking, that’s true, as Comey acknowledged. But applied too broadly in a constitutional republic that is a nation of laws—not individuals—it’s dubious.
Even President Richard Nixon’s most stalwart defenders conceded that a president was not above the law. In 1974, a unanimous Supreme Court rejected his assertion of unlimited power with respect to federal criminal investigations involving him or his associates and the Watergate scandal. Subsequent articles of impeachment described his obstruction of justice in ways that could echo for Trump—“interfering or endeavoring to interfere with the conduct of investigations by…the Federal Bureau Investigation” and “endeavoring to misuse” the CIA by asking it to block the FBI probe.
Former US Attorney Preet Bharara illustrated the perils of focusing on Trump’s “executive branch omnipotence” tree. “[If] Michael Flynn offered a million dollars to Donald Trump and said, ‘I’m going to give you this million dollars and I’m giving it to you because I want you to fire Jim Comey,’ and then Donald Trump fired Jim Comey, which everyone agrees he has the absolute authorization and authority to do, that would be an open and shut federal criminal case,” Bharara said. “It’s a quid pro quo and he could be charged—the president of the United States. So this argument that you keep hearing on the TV shows that the mere fact that the president can fire an official at will doesn’t solve the problem.”
If Trump committed what would be a felony by any other citizen, such acts would, at a minimum, become a powerful basis for impeachment. And once out of office, the specter of criminal prosecution would move from theoretical to real. That’s why Richard Nixon accepted a pardon from President Ford.
The issue isn’t whether a president has enormous discretion to run the executive branch. The question is where the lawful limit of that discretion lies. That’s why the Trump/Russia and Comey Firing Timelines provide important context within which to evaluate Trump’s actions. As the saga unfolds, don’t believe those asserting that the facts prove Trump is already in the clear. Don’t let anyone sell you the dangerous proposition that the president is above the law.
And don’t let shiny objects in the trees distract your view of the forest.