Donald Trump and James Comey

Can the President be charged with Obstruction of Justice?

The Background

President Donald Trump reportedly told then FBI Director James Comey that he hoped Comey would “let go” of the FBI investigation of Trump’s National Security Adviser Michael Flynn. The FBI, however, continued its investigation of Flynn. Trump also wanted Comey to disclose publicly that he was not personally under investigation, but the FBI director refused to do so.

Several months later Trump fired Comey, purportedly on the recommendation of the Attorney General and the Deputy Attorney General. However, Trump later explained to NBC’s Lester Holt, “Oh, I was going to fire regardless of recommendation.” “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.”

Soon after, Trump spoke to Daniel Coats, the Director of National Intelligence, about the Russia investigation. Coats was attending a briefing at the White House when Trump asked everyone to leave the room except for Coats and CIA Director Mike Pompeo. According to officials, Coats told associates that Trump asked him whether he could intervene with Comey to get the FBI to back off its focus on former national security adviser Michael Flynn in its Russia probe.

A day or two after this meeting, Trump telephoned Coats and Mike Rogers, head of the National Security Agency, to separately ask them to issue public statements denying the existence of any evidence of coordination between his campaign and the Russian government. Coats and Rogers refused to comply with the president’s requests.

Investigating the President

Robert Mueller

On June 14th, the Washington Post reported that Robert S. Mueller III, the special counsel overseeing the investigation into Russia’s meddling in the 2016 election, is interviewing senior intelligence officials as part of an expanding inquiry that now includes the examination of whether President Trump attempted to obstruct justice.

The nearly year-long FBI probe has so far focused on Russian meddling during the presidential campaign and whether or not there was coordination with the Trump campaign. This move by the special counsel to investigate Trump’s conduct includes his conduct with Comey, Coats, and Rogers as outlined above, and also is looking for any evidence of possible financial crimes among Trump associates.

So what is obstruction of justice?

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 interfere with an official proceeding, by doing things such as destroying evidence, or interfering 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.

Can a sitting President be prosecuted?

There has never been a serious attempt to prosecute a sitting president. While no court has ever ruled on whether it’s possible, a 2000 analysis by the Department of Justice agreed that “a sitting President is constitutionally immune from indictment and criminal prosecution.”

There is, however, a remedy for presidential misconduct, provided by Article II, Section 4 of the Constitution: impeachment and removal from office. According to Section 4, any civil officer of the United States can be removed from their position for “Treason, Bribery, or other high Crimes and Misdemeanors.”

The process begins in the House of Representatives. Impeachment is the equivalent of an indictment in the regular justice system. If a majority of the House approves one or more articles of impeachment, a trial is held in the Senate under the supervision of the chief justice of the Supreme Court, with senators acting as the jury. If two-thirds of the Senate votes to convict, the official is removed from office.

Only two presidents, Andrew Johnson in 1868 and Bill Clinton in 1998, have ever been impeached and tried in the Senate, and neither was convicted. Richard Nixon, the president most associated with impeachment, in fact was not impeached. Instead, after the House judiciary committee approved three articles of impeachment, he resigned before they were voted on by the full House.

Conclusion

So the answer to the question, ‘Can the President be charged with obstruction of justice?’ is a resounding YES. Whether or not he can be prosecuted for it is yet to be seen.

Sources:

  • Barrett, Devlin, Adam Entous, Ellen Nakashima and Sari Horwitz. “Special counsel is investigating Trump for possible obstruction of justice, officials say.” Washington Post (June 14, 2017) Accessed 6.15.17. http://wapo.st/2rodHLO
  • Cummings, William. “Full Text of Trump’s letter telling Comey he’s fired.” USA Today (May 9, 2017) Accessed: 6/15/17. https://usat.ly/2tw7PRn
    Hains, Tim. “President Trump’s Full Interview with Lester Holt: Firing of James Comey” RealClear Politics (May 11, 2017) Accessed: 6/15/17. http://bit.ly/2rPZMz9
  • “Obstruction of Justice.” Legal Information Institute. Accessed 6.16.17 https://www.law.cornell.edu/wex/obstruction_of_justice
  • Schwarz, Jon. “A Short History of Presidential Obstruction of Justice.” The Intercept (May 17, 2017) Accessed 6.15.17. http://bit.ly/2rzMTfy

FURTHER READING

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