May 17, 2017
The Criminal 45th POTUS?
After the revelations of the past 24 hours, it appears that President Trump’s conduct in and around the firing of the F.B.I. Director, James Comey, may have crossed the line into criminality. The combination of what is known and what is credibly alleged would, if fully substantiated, constitute obstruction of justice. It is time for Congress and a special counsel in the executive branch to conduct objective, bipartisan inquiries into these allegations, together with the underlying matters involving Michael Flynn and Russia that gave rise to them.
First, the facts. On January 26, Sally Yates, then the acting Attorney General, informed the White House that Mr. Flynn had apparently lied about his conversations with the Russian Ambassador. The next day, President Trump hosted Mr. Comey for a private dinner, during which he allegedly asked Mr. Comey repeatedly whether he would pledge his “loyalty” to him, which Mr. Comey declined to do.
Sally Yates–Acting Attorney-General
On February 14, the day after Mr. Flynn’s resignation as National Security Advisor, President Trump allegedly held Mr. Comey back after a meeting to say that Mr. Flynn had done nothing wrong and that, “He is a good guy. I hope you can let this go.” Mr. Comey declined to drop the investigation, going on in March to confirm before Congress that it was ongoing, and later requesting greater resources from the Department of Justice to pursue it.
Finally, on May 9, President Trump fired Mr. Comey. We were first told he did so because Mr. Comey bungled the F.B.I.’s investigation into Hillary Clinton’s email. Two days later, President Trump changed his story: “In fact, 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 day after that, President Trump threatened Mr. Comey on Twitter, warning him against leaking to the press.
Any one of these facts or allegations, by itself, likely would not constitute obstruction of justice. After all, as the F.B.I. Director himself stated, the President has the undisputed power under the Constitution to hire and fire members of his administration in the normal course of government business.
But what he cannot do is exercise that power corruptly, to spare himself or those associated with him, like Mr. Flynn, from scrutiny and possible criminal liability. To do so would run afoul of a series of federal statutes that define the crime of obstruction of justice. They are variations on the theme that anyone who “corruptly” or by “any threatening letter or communication” tries “to influence, obstruct, or impede, the due administration of justice” will be subject to criminal penalties.
The operative word here is “corruptly.” It means “an improper purpose,” or one that is “evil” or “wicked.” There is no precise formula for defining it; those involved in the administration of justice must continually wrestle with its interpretation.
Here, the evidence strongly suggests that the president acted corruptly. That starts with the demand for loyalty from Mr. Comey, the account of which the White House disputes. That demand can reasonably be understood to mean that Mr. Comey should protect Trump and follow his bidding, rather than honoring his oath to follow the evidence. It is also an implicit threat: Be loyal, or you will be fired.
When Mr. Comey did not seem to take the hint, Mr. Trump made his meaning crystal-clear on February 14: Let the investigation go, and let Mr. Flynn go, too. The president denies this as well, of course, as he has denied so much else that has proven to be true. Who are we to believe: Mr. Comey, who would have no reason to accuse the President of obstruction of justice, and who has apparently preserved meticulous notes of his conversations? Or the President, who fact-checkers have demonstrated has told more lies in less time than any other modern occupant of the Oval Office?
While Mr. Trump might have been within his rights to fire Mr. Comey, this pattern of demands to protect himself and Mr. Flynn, followed by retaliation when the demands were not met, if proven, is a textbook case of wrongful conduct. Add to this the fact that Mr. Flynn was already offering testimony about the Russia connection in exchange for immunity from prosecution, and Mr. Trump’s clumsy attempt to dissemble the cause of the firing, and it is clear that a cover-up was afoot.
Finally, Mr. Trump topped things off with his tweeted threat to Mr. Comey; witness intimidation is both obstruction of justice in itself, and a free-standing statutory offense.
Taken together, this evidence is already more than sufficient to make out a prima facie case of obstruction of justice — and there are likely many more shoes to drop. Mr. Comey reportedly took notes on all of his encounters with the president. If what has emerged so far is any indication, this is unlikely to offer much comfort to Mr. Trump.
And there remains the core question of the President’s motives. Is he withholding his taxes because they show evidence of “a lot of money pouring in from Russia,” as his son once stated, or do they show no such thing, as his lawyers claim? Why is Mr. Trump so fervently protecting Mr. Flynn: out of loyalty to a friend, or because Mr. Trump fears what that friend would say if he received immunity?
We have previously called for Congress to set up an independent 9/11-style commission on the Russia and Flynn investigations, and for the Department of Justice to appoint a special prosecutor. This appointment is necessary because Congress can’t actually prosecute anyone who may have committed crimes, including obstruction of justice, in connection with the Trump-Russia matter. This week’s revelations about the president, the most powerful man in the country, emphasize the need for these independent structures to be erected and to encompass these new allegations.
At least for now, we need not address the question, fully briefed to the Supreme Court during Watergate, but never resolved, of whether a special prosecutor could indict the President; as with Nixon, the question may again be obviated by other events, like the House initiating impeachment proceedings and the President resigning.
In the meantime, the House and Senate must continue their existing investigations and expand them, with the Judiciary Committees of both bodies immediately beginning hearings into the president’s abuse of power. Congress must be prepared to follow the evidence wherever it may lead.
Richard W. Painter, a Professor at the University of Minnesota Law School, is the Vice Chairman and Norman L. Eisen is the Chairman of Citizens for Responsibility and Ethics. They were chief White House ethics lawyers for Presidents George W. Bush and Barack Obama, respectively.