By Charles A. Ross, Esq. and Scott Schwartz, Paralegal; assisted greatly by Nicole Beto and Tyler Norris, Law Student Interns
It is hard to keep track of all the stupid and terrible things Donald Trump has done to truly jeopardize our government and democratic system. However, it has recently become clearer that he may, and really should, face criminal obstruction of justice charges. Mr. Trump’s abrupt and thoughtless firing of FBI Director James Comey has caused a cascade of attention on Mr. Trump’s questionable and arguably shady dealings with Russia during the election campaign of 2016. The following are the top five reasons, among so many, that Trump may face obstruction of justice charges and thus face a true basis for impeachment.
1. Trump Asked Comey To Back Off The Investigation of Michael Flynn
In a contemporaneous memorandum written and filed by Director Comey on February 14, 2017, only a day after National Security Advisor Michael Flynn resigned his post, Comey states that Trump said “I hope you can let this go.” Obstruction of Justice under 18 USC §1503 sets out that “[w]hoever corruptly, or by threats or force… endeavors to influence, intimidate, or impede…” an investigation is guilty of Obstruction of Justice.
Obstruction may consist of any attempt to hinder the discovery, apprehension, or punishment of anyone who has committed a crime. The acts by which justice is obstructed may include, but are not limited to, bribery, intimidation, and the use of physical force against witnesses, law enforcement officers or court officials. Not only must evidence demonstrate beyond a reasonable doubt that Trump committed acts of obstruction of justice, but he also must have had the intent to obstruct justice, which is much more difficult to prove.
Let’s start with the two potential “acts” of obstruction. 1) President Trump’s request to Comey to drop the investigation against Flynn, the day after Flynn resigned as National Security Advisor and 2) Trump’s subsequent firing of Comey. Both acts can be interpreted as attempts to obstruct, influence, or impede the investigation into Flynn and thus into the Trump campaign’s dealings with Russia.
A corrupt intent requires proof that Trump acted with an inappropriate purpose, i.e. an intent to obstruct the investigation, as opposed to a legitimate, lawful intent. To prove intent, both direct evidence and/or circumstantial evidence may be used. Prosecutors will look at any and all available evidence, including the potential acts themselves, as well as Trump’s statements and conduct surrounding the acts to determine intent. There’s no secret way to look inside someone’s mind. Intent is inferred from actions.
2. It’s not what you say, but how you say it.
It has been argued that Trump was simply sticking up for his friend Flynn. It has been claimed he was making some kind of polite suggestion without any intended consequences. Trump was just a misunderstood guy. However, Trump appears to have used the point blank power of the presidency to try to get Comey to drop the investigation against Flynn. Was he threatening Comey? How was it not a threat, given that Trump fired Director Comey when the FBI Director did not come to heel? We suggest that Trump directly threatened Comey when he asked him to back off. The proof is in the pudding of Trump firing Comey. He was not serving as a character witness for Flynn. Trump made a threat to Comey to drop the investigation against Flynn completely. Not only was it how Trump requested to drop the investigation, but the context of the conversation as well. Trump’s set up for the context of the conversation is strongly suggestive that even he himself knew that what he was doing was improper when he requested to speak to Comey privately about Flynn at a national security meeting.
3. Robert Mueller is “Mr. Untouchable”
Trump’s recent actions are more akin to Robert DeNiro’s mobster role as Jimmy Conway in Martin Scorsese’s Goodfellas than that of a President of the United States. In Goodfellas, Conway trims down the gangster outfit by “whacking” anybody who could link him to the big heist. Unfortunately for Trump, he cannot legally “whack” Comey or Flynn. He can only fire them. Luckily for Trump, his firings are in a constitutional gray-zone and are within Presidential power. But Comey and Flynn will, in all likelihood, be subpoenaed before Congress.
Trump’s newest obstacle is Special Counsel Robert Mueller. With the appointment of special counsel, the Deputy Attorney General Rod Rosenstein virtually “opened up the books” for Robert Mueller. Mueller and Comey are friends and have known each other for years. Mueller’s powers under federal law are to ensure a thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election. In addition, federal law states that an acting attorney general will appoint a special counsel if a warranted investigation could present a “conflict of interest” for the Department of Justice.
Although Trump can fire Mueller, 28 C.F.R. § 600.8 requires Mueller to report to the Acting Attorney General on the investigation and not to the President. Certainly Trump would be completely foolish to fire Mueller, though every day of this Administration brings a new shocker. Attorney General Sessions has recused himself since he was an early participant in the Trump campaign and reportedly had contact with Russian officials during this time. The American public might see Mueller as the only opportunity for a truly independent investigation into the Russian impact on the 2016.
4. Trump Will Try and Meddle With Mueller’s Investigation
Although President Trump confidently maintains that any investigation will confirm no collusion between his campaign and the Russians, his recent actions suggest otherwise. Headlines show that President Trump is more than willing to fire anyone who does not guarantee political loyalty.
Mueller’s appointment allows him to conduct his investigation away from Trump’s and the Department of Justice’s influence. Recent history suggests that Trump will likely not play ball with Mueller’s investigation. Trump’s options to fight Mueller’s investigation are limited and might incite political backlash. Trump may seek to claim executive privilege or Trump may attempt to silence Comey and Flynn. Each option is eerily similar to the choices former President Nixon made previous to the “Saturday Night Massacre” and his eventual resignation. We suggest all of these possibilities may make an obstruction case even stronger than it is now.
The “Saturday Night Massacre” refers to the former President Richard Nixon’s orders to fire the independent special prosecutor Archibald Cox. Nixon’s orders to fire Cox led to the resignation of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus which turned public opinion against Nixon. This turn in public opinion was a catalyst to the eventual congressional impeachment efforts.
With more and more comparisons to the Nixon Administration, it is not surprising that recent polls find that not only is Trump’s loyalty base shrinking, but impeachment support is growing. Recent Economist polls found Trump’s approval rating at 38 percent, down from 49 percent after the inauguration. In addition, FiveThirtyEight wrote that the “Trumpland” base (those who “strongly agree” in the Trump Administration) dropped from 30% to 20%. Further, POLITICO polls show an increase from 38 to 43 percent of the population in support of impeachment proceedings (45 percent are opposed to impeachment).
Trump’s success at avoiding serious trouble thus far is likely due to his unwavering support from his political base. If Trump’s public support continues to dwindle, Congress may seriously start considering an impeachment proceeding.
5. Trump says, “Believe Me,” but How?
When the Truth-O-Meter monitor on the Pulitzer Prize-winning website Polifact says that 70% of the President’s statements are mostly false, it makes it difficult for not only the American people, but the American government to keep from concluding that Trump is a flat-out liar. In a recent CNN article, historian Timothy Neftali stated, “What I worry about at the moment is that because President Trump has shown such disrespect of the US national security community, including the intelligence community, it is hard for me to see how he can convince the American people of anything less than an absolute in your face threat.” Trump is running out of chances for not only the government to believe him, but also the rest of the American public, to whom he made so many promises.
There is more than enough evidence to bring an obstruction of justice case. But stay tuned, because the evidence is just bound to mount and mount.