Is the stunning revelation that the FBI director wrote a contemporaneous memo that the president tried to get him to shut down an ongoing investigation of the former national security adviser the smoking gun that will finally end the Trump presidency? Do the contents of the memo spell legal trouble for the president or just a massive political problem?
James Comey’s memo would be a windfall for any prosecutor intent on building a case that Donald Trump violated federal criminal law, but there’s no reason for Trump supporters to panic or for others to hold their breath in that respect. No federal prosecutor may ever take up such a case—no matter how strong it is, and the true locus of power for what will happen to Trump rests with inherently political decisions made in the halls of Congress.
If there is legal trouble ahead for Trump, it’s because the facts in this case look and smell a lot like the federal offense of obstruction of justice. The question prosecutors would need to answer, technically speaking, is whether the president “corruptly endeavored to influence, obstruct, or impede” the FBI investigation. But what exactly does it mean to have “corruptly” attempted to influence or otherwise subvert such a federal process, and how would the memo help prove it?
Though the White House is denying it, let’s assume for now that the events described in Comey’s memo took place. All the president said is that he had “hope” that the FBI would drop the Flynn investigation. What would be the “theory of the case”—on what ground would the president’s remarks amount to obstruction of justice?
On one view, the strongest case is that president’s actions that day in the Oval Office involved obstruction of justice by trying to pressure the FBI director to drop the investigation. As current and former federal prosecutors will say, “intent is key” and is often the most difficult element to prove in an obstruction of justice case—but here Trump’s remarks would surely go a long way to establishing intent. Indeed, it would be difficult to construe his plea to Comey any other way than trying to influence the outcome of the investigation. Trump’s tweets and comments he may have made to White House staff will also be relevant to establishing intent.
But was the president’s expressing his “hope” an exercise of coercion or pressure? It definitely was if it involved an implicit threat that Comey’s job was on the line. The events before and after that meeting suggest that’s exactly what it was about. According to the president’s telling, just over two weeks earlier Comey had come hat in hand to ask for a private dinner and a chance to “stay on,” to which the president replied, “I’ll consider, we’ll see what happens.” Trump also admitted that he asked Comey during that dinner whether he himself was under investigation. Following the Oval Office meeting, the president’s “hopes” were dashed. Comey reportedly asked for more resources to expand the Russia investigation, and the U.S. Attorney’s Office in Virginia issued subpoenas to associates who worked with Michael Flynn, the ousted national security adviser. Soon thereafter the president fired Comey. Those subsequent actions help prove that yes, indeed, the president was threatening the FBI director with his job that day.
Another theory of the case is that firing Comey is the act of obstruction of justice, and the events that took place that day in the Oval Office help show the president’s intent. In this vein, smart prosecutors will try to turn a weakness into a strength. Rather than avoid the fact that the president only said he had “hope” of what Comey might do, the fact that the president tiptoed around what he wanted—and did so only after telling the vice president and attorney general to leave the room—evinces a criminal state of mind. What’s more, if Trump had indeed asked for the FBI director’s personal loyalty during that private dinner (and was twice rebuffed) the case against the president is even stronger.
But how strong is the case overall? Even if Trump broke the law, could prosecutors convince a jury that he did beyond a reasonable doubt? Would Comey’s memo withstand the interrogation of defense counsel, and accusations, even if fabricated, that Comey’s notes were shaped by his own self-serving purposes?
We may never find out because no prosecutor may ever go before a federal court—having nothing to do with the strength of the case. Why is that? Because the Executive Branch has told itself a constitutional story that it can’t prosecute a sitting president. According to a legal opinion issued by the Justice Department’s Office of the Legal Counsel in 1973 and reaffirmed in 2000, the president is immune from prosecution before a federal criminal court, and only one avenue exists to pursue a case against him: impeachment.
So ultimately this issue will boil down to a political decision. It will be up to Congress to decide whether to go down the path of impeachment—a most unlikely prospect with its current composition. But were the House to start impeachment proceedings, the outcome will not turn on the precise elements of obstruction of justice nor proof beyond a reasonable doubt. Congress may define impeachable offences more broadly than anything that’s in the federal criminal code and members must satisfy only “their own consciences” with respect to the president’s guilt rather than any hard standard of proof.
Another option or accountability is in the offing, but it too involves a political decision rooted in Congress. Somehow miraculously overriding a presidential veto, Congress could pass legislation establishing an independent counsel. Members would also have to do so despite the long-standing Justice Department view that a sitting president is immune from criminal prosecution in federal court. There are, to be sure, a wide range of scholarly views on whether the Justice Department’s view is legally correct, but no court has squarely faced that question. In the final analysis, this is not a politically or legally assured path to go down.
There’s one other avenue left to help vindicate the public interest if, indeed, the president engaged in an obstruction of justice—but it turns on a factual question. Did the president act alone? If the attorney general, deputy attorney general, or political advisers knowingly participated in a plan to subvert the ongoing FBI investigation through pressuring or removing Comey, they themselves may be guilty of the crime. Prosecutors would be wise to start low and work up the chain of officials in building a case and turning suspects as they wend their way to the top. If any of Trump’s associates are convicted for obstruction of justice, history will understand who was chiefly to blame. Immunity cannot save a president from such a fate—to be sure a political one, but soaked in the disgrace of criminal law.