How Trump Might Avoid Criminal Prosecution for Obstruction

(Bloomberg) -- Did President Donald Trump obstruct justice? That's the question that will animate Thursday's Senate testimony by James Comey. The answer contains a legal wrinkle that so far hasn't received much attention.

Relying on a cache of previously confidential notes he kept, the former FBI director is expected to elaborate on private dealings he had with the president related to the Russia investigation. The bureau is looking into whether Trump campaign aides colluded with Russian officials at a time when Moscow was interfering with the U.S. election.

Citing an anonymous source, ABC News reported on Tuesday that Comey will stop short of offering a legal opinion that Trump obstructed justice. His written opening remarks, which were released on Wednesday, don't address obstruction in legal terms. But that won't stop political and media discussion of whether the president violated the law by interfering with the Russia probe. Any case for obstruction would likely include a memo he wrote detailing a private February meeting in which Trump asked him to drop the investigation of former National Security Adviser Michael Flynn's contacts with the Russian ambassador to the U.S. After Comey didn't comply, Trump fired him. The president intensified talk of obstruction when he arguably threatened Comey in a tweet: “James Comey better hope that there are no ‘tapes' of our conversations before he starts leaking to the press!”

Whatever your leanings on Trump, it'll be worth your time to consult a recent post on Lawfare. There, editor-in-chief Benjamin Wittes, a senior fellow at the Brookings Institution, and co-author Helen Klein Murillo, a member of the Harvard Law Review, raise a serious question about whether the law on obstruction covers the Trump–Russia scenario.  

Wittes, as it happens, is a friend of Comey's, but the relationship doesn't color his reading of the obstruction laws. The Lawfare article begins with the Justice Department's distillation of the three elements of an obstruction charge: the existence of a “proceeding pending before a department or agency”; a defendant who “knew of or had a reasonably founded belief that the proceeding was pending”; and a showing that the defendant “corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

Since Comey's firing, most attention has focused on the third element—whether Trump's words and actions amounted to an effort to “influence, obstruct, or impede” and whether his mindset qualified as “corrupt.” Those are tough things to prove. Indeed, the difficulty of establishing a defendant's corrupt intent helps explain why obstruction cases are relatively rare.

But the Lawfare writers point out that an FBI investigation may not even qualify as a pending proceeding. Courts have issued conflicting interpretations as to whether federal investigations meet the standards required for an obstruction charge. One influential 1981 lower-court ruling said that “proceedings” referred only to “the rulemaking or adjudicative power” vested in an agency—and not to an FBI investigation.

The U.S. Attorney's Manual concedes the issue and tells federal prosecutors not to bring obstruction cases related to FBI investigations. The FBI can often pursue other charges that are easier to prove, such as the making of false statements to a federal officer and tampering with a witness.

So Trump, no matter what he has said and done, may not have to worry that Robert Mueller, the Special Counsel appointed by the Justice Department to take over the investigation, will ever come after him with an obstruction case. More broadly, it's doubtful a prosecutor could successfully bring ordinary criminal charges against a sitting president. But that doesn't mean the question of whether Trump's actions constitute obstruction will be irrelevant to his fate. Congress, when considering impeachment, doesn't have to hew to the letter of federal law. Impeachable “high crimes and misdemeanors” are whatever the House and Senate say they are, and lawmakers, who typically focus on the abuse of power when considering the removal of a president, have in the past included obstruction in their charges—the articles of impeachment against both Richard Nixon and Bill Clinton included obstruction allegations.

Whether or not Comey defines his exchanges with Trump as obstruction, savvy observers will be scouring his testimony for evidence that it took place. It could one day—though probably not until Democrats retake control of Congress—become part of a case for impeachment.

To contact the author of this story: Paul Barrett in New York at pbarrett17@bloomberg.net.

To contact the editor responsible for this story: Jeremy Keehn at jkeehn3@bloomberg.net.