In the case of President Richard Nixon, a recording of a single directive for the CIA to squash the FBI investigation of the break-in at the Democratic National Committee headquarters was dubbed a smoking gun.
Fordham law professor Jed Shugerman tells me that the obstruction statute, 18 U.S. Code Section 1505, requires that the prosecutor show a defendant in an obstruction prosecution “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 and proper administration of the law.” Shugerman says that for these purposes, the requisite intent boils down to “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”
What have we got to show that?
- The president allegedly cleared the room before asking Coats and Pompeo to stop Comey.
- The president repeatedly asked Comey about the investigation. In one instance, he again cleared the room (asking Vice President Pence and Sessions, among others, to leave) so that he could talk to Comey alone. Afterward, Comey told Sessions not to leave him alone with Trump because of concern over interference with the investigation.
- According to a contemporaneous, purported memo by Comey, the president told Comey he hoped ” you can see your way clear to letting this go, to letting Flynn go. He is a good guy.”
- Trump fired Comey, first putting out a false story and blaming Rosenstein for the firing. He then essentially confessed to Lester Holt in an NBC interview that “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; it’s an excuse by the Democrats for having lost an election that they should have won.’ “
- The president reportedly became irate with Sessions when he found he had recused himself, possibly suggesting that he wanted Sessions there to keep Comey in check.
- He made up a bogus story about Trump Tower being bugged by the Obama team in an effort to throw the FBI off-topic.
Collectively, we have a rather persuasive picture of a president frantic to end an investigation that might embarrass him or diminish him in some fashion. Ethics guru Norman Eisen says that in an obstruction prosecution, the key issue would be whether Trump and others were “acting for an improper purpose, such as to evade personal embarrassment or legal liability for Trump, for people connected to him, and possibly even for Russian wrongdoers.” He notes: “It’s already clear from the president’s own words that he was acting to impair the investigation. The key question is whether he was doing so with a wrongful purpose, and if so, what that was.”
However, all of this goes to whether a criminal prosecution would hold up. The real worry for Trump is impeachment. The actions listed above certainly could qualify as abuse of power and obstruction for impeachment purposes. Impeachment is a political decision by Congress.
We will be looking at a series of questions today and when Comey testifies tomorrow:
Did the president make an explicit request to end the Comey investigation?Did he suggest that Comey or other officials’ jobs would be in jeopardy unless they complied?Did Comey and others tell associates at the time what Trump was doing?Do Comey, Coats and others have contemporaneous notes of conversations with the president?Will Sessions voluntarily testify at some point? If so, he can be asked why Trump was so upset over the recusal.What did/does Flynn have to say or what other evidence is there in the Russia investigation that so disturbed Trump?And most important, will Trump control himself or once again dig his own political grave with Twitter outbursts?How do GOP lawmakers react to the testimony? Do they, for example, start denouncing Trump and his behavior?
We may have the rare case in which intent in alleged obstruction may be easier than usual to demonstrate because the alleged perpetrator made so many comments and talked to so many people about his obsession with dumping Comey. At that point, the GOP would need to decide whether to move forward to remove him — or risk losing control of both houses and letting Democrats do it in 2018.