With the Trump-Russia collusion story all but debunked, the left has immediately turned to its next-stage scandal: they want President Trump locked up for “obstruction of justice.” They base their claims of obstruction on the following chain of events: Trump hired National Security Advisor Michael Flynn against the advice of nearly everyone in the foreign policy community, fired him under questionable circumstances, then allegedly told FBI director James Comey he “hoped” Comey would find a way to let Flynn go, later fired Comey, and then finally told the Russian ambassador and foreign minister that he had fired Comey to relieve pressure over the Russia investigation.
This, in the minds of the left, means that Trump fired Comey in order to shut down the Flynn investigation after essentially ordering him to do so.
So, would that be “obstruction of justice,” even if it were true?
Professor Alan Dershowitz of Harvard Law School says no. Dershowitz says, “The president could have told Comey, you are commanded, directed, to drop the prosecution against Flynn. The president has the right to do that. Comey acknowledges that. He says in the statement that historically, historically presidents have done that to the Justice Department.”
It is unquestionably true that Trump has the absolute right to fire his FBI director. And the old, Supreme Court-protected Independent Counsel Act was allowed to die a decade and a half ago; that Act could have granted an independent counsel freedom from presidential firing, but it no longer exists. As Dershowitz also points out, Trump has pardon power, so he could have just pardoned Flynn outright.
With that said, the counter case goes something like this: if Trump wanted to fire Comey for failing to comply with his desires, he could have. Instead, he threatened him. That amounts to obstruction.
But that case is weak on a legal level. There are three separate federal laws, as The New York Times points out, that could deal with this situation. None clearly does.
1. 18 USC 1503: This “omnibus” clause covers “corruptly or…by any threatening letter or communication influenc[ing], or imped[ing] or endeavor[ing[ to influence, obstruct, or impede, the due administration of justice.” But the clause also requires a pending judicial proceeding – and as far as we are all aware, there is none. Furthermore, the Supreme Court is quite exacting on the application of this law – a prosecutor would need to prove that Trump’s conduct materially impeded the investigation, which even Comey has said didn’t happen.
2. 18 USC 1512(c): This provision of law covers anyone who “obstructs, influences, or impedes an official proceeding, or attempts to do so.” It is not clear that an FBI investigation is an “official proceeding,” and proving intent is difficult in any case. And it’s not enough to show intent to violate the subsection – you have to take a “substantial step toward the accomplishment of that goal.”
3. 18 USC 1519: This provision covers destroying evidence related to a federal investigation. There are no accusations that Trump destroyed evidence. Unless Trump had tapes and destroyed them, the statue simply doesn’t apply.
None of this is to argue that Congress can’t impeach. Congress can impeach for anything and everything – impeachment is a political matter, not a legal one. And even if Trump’s activity wasn’t illegal, that doesn’t mean it was moral. But all the amateur legal analysts claiming that an indictment is just around the corner simply don’t know what they’re talking about.