Andrew C. McCarthy is a former federal prosecutor and a contributing editor at National Review.
James B. Comey’s testimony Thursday before the Senate Intelligence Committee will no doubt embolden those who believe we already know enough to conclude that President Trump obstructed justice by leaning on the then-FBI director to halt a criminal investigation of Michael Flynn. But nothing that Comey said alters the fact that this claim remains fatally flawed in two critical respects: It overlooks both a requirement for corrupt intent and the principle of executive discretion.
It is true that federal statutes criminalizing obstruction of the administration of law — including by agencies such as the FBI — cite not only actual interference with an investigation but attempts to do so as well. That is, the fact that the investigation of Flynn, a close Trump campaign adviser who would briefly serve as his national security adviser, was never actually shut down cuts against the case for obstruction, but it is not dispositive.
But the arguments for presidential obstruction here tend to omit the statute’s most important word: “corruptly.” Not every form of interfering with an investigation, or even the closing down of an investigation, is felony obstruction. Only corrupt ones. Prosecutors must prove beyond a reasonable doubt that the accused not only acted intentionally but also with an awareness that his actions violated the law.
The usual examples are straightforward: A public official is paid off to lean on the police to drop a case. Or an official acts to halt an investigation out of fear that a suspect will reveal wrongdoing by the official.
So, what would be a legitimate interference with an investigation?
This brings us to executive discretion. Every day, in FBI and U.S. attorney’s offices throughout the nation, agents and prosecutors decide to close investigations and decline prosecutions. Many of these cases are viable, but these executive-branch officials judge that the equities weigh against continuing the investigation or filing an indictment. They consider the seriousness of the offense and balance that against personal factors related to the suspect — criminal history, contributions to society, whether alternatives to criminal prosecution would be more appropriate, whether a criminal charge would be overkill because of other consequences the suspect has suffered, etc.
This is important because the president is the chief executive. We like to think of law enforcement as insulated from politics, and we certainly aspire to a politics that does not undermine the rule of law. In our system, however, it is simply not the case that law enforcement is independent of political leadership. The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates.
That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do.
Consider Comey’s testimony. He said there was an open investigation based on suspicion that Flynn made false statements to FBI agents about his conversations with Russian ambassador Sergey Kislyak.
In describing their Feb. 14 meeting, Comey understandably inferred, from Trump’s request that others leave the room, the president’s possible awareness that he was about to do something inappropriate. But this suspicion must be balanced against what Trump actually did, which was merely to plead on Flynn’s behalf, not order an outcome.
Comey recalled the president opining that Flynn had not done anything terribly wrong. And it is true that Flynn’s communications with Kislyak were consistent with his role in the Trump transition, and that reportedly he did not make any commitment to undo sanctions imposed by President Barack Obama. According to Comey, Trump added that Flynn was “a good guy.” This is also true: Flynn is a combat veteran who served his country with bravery and distinction. The president added that Flynn had “been through a lot.” True again: He’d been fired in humiliating fashion, and his financial prospects were obviously dimmed by indications that he had been incompetent, if not deceitful.
In other words, assuming Comey’s version of the conversation is correct (Trump has disputed it), Trump was doing what prosecutors and agents do: He weighed the equities and opined that further investigation and potential indictment were not warranted. Enough was enough.
Comey, we must note, took pains to say that Trump did not ask him to halt the broader investigation of Russian meddling in the election. Indeed, he said the president observed in a March 30 phone call that it would be a benefit if potential wrongdoing by any of his “satellite” associates were uncovered. This strongly suggests that he was not lobbying for Flynn out of fear that the investigation would uncover misconduct by Trump and his circle.
One can certainly disagree with Trump’s marshaling of the equities involved in proceeding against Flynn. But to weigh them and recommend against proceeding was a legitimate exercise of executive discretion. The president has every bit as much authority to engage in that exercise as his subordinates. And it bears repeating that he did not order a halt to the investigation — though he could have.
This was clearly not corruption. And without corruption, there cannot be obstruction.
This is not to suggest the president’s executive discretion is absolute. A president who abuses his power in a manner that undermines our system of justice can and should be impeached. Indeed, the Nixon articles of impeachment alleged obstruction of law-enforcement investigations. Trump, by contrast, has not obstructed the administration of law, much less done so systematically.