Several legal experts said Tuesday that President Donald Trump could be subject to an obstruction of justice charge, after The New York Times reported on a memo in which former FBI Director James Comey wrote that Trump asked him to drop an investigation into Michael Flynn.
“Three words: obstruction of justice,” CNN legal analyst Jeffrey Toobin said on air. “Telling the FBI director to close down an investigation of your senior campaign adviser for his activities during your campaign for president, if that’s true, that’s obstruction of justice.”
The Times reported that Trump asked Comey during a February meeting to shut down the FBI’s investigation into Flynn, the now-ousted national security adviser. Comey announced at a March hearing that the bureau was investigating any potential collusion between the Trump campaign and Russian officials.
The Times cited a memo Comey wrote shortly after the meeting, which took place the day after Flynn’s resignation. Comey wrote that Trump told him “I hope you can let this go,” according to the Times.
Trump fired Comey last week, and mentioned the investigation into Russia when explaining his rationale during an interview with NBC News’ Lester Holt. However, Trump said he did not pressure Comey to end the Russia investigation. Trump also told Holt he received multiple personal assurances from Comey that he was not personally under investigation, and he later tweeted that Comey “better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
The same day Comey was fired, a grand jury issued the first subpoenas in that investigation, seeking business records of Flynn associates.
The White House responded to the Times report by suggesting that the story was “not a truthful or accurate portrayal of the conversation” between Trump and Comey. Additionally, the administration pointed to acting FBI Director Andrew McCabe’s testimony from last week when he said Comey’s firing had not interfered with any investigation.
“While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn,” the White House said in an unsigned statement. “The President has the utmost respect for our law enforcement agencies, and all investigations.”
But Toobin and others were quick to outline the effects of the potential bombshell memo, though a physical copy had yet to be seen by major media outlets.
“Why do you think Director Comey wrote a memo to the file about it?” Toobin said. “Because he was so appalled that a president of the United States would behave in this way. ‘Close it down’ is an instruction to stop investigating President Trump’s campaign. … If Comey was telling the truth, and obviously there is a dispute from the White House, if he’s telling the truth, I don’t know how anyone can see this comment as anything other than obstruction of justice.”
Richard Painter, a professor at the University of Minnesota who served as President George W. Bush’s chief ethics lawyer from 2005 through 2007, told Business Insider there would be a strong case for an obstruction of justice charge.
“I believe obstruction of justice would be occurring if there were an express or implied threat to fire the FBI director if he did not drop the Flynn investigation or other parts of the Russia investigation,” he said. “That’s obstruction of justice. The president fired the FBI director.”
Painter called for immediate hearings in the House and Senate Judiciary Committees on whether Trump and his senior staff has committed “abuse of power.”
He also pointed to a New York Times report from last week that cited sources as saying Trump had asked Comey to pledge loyalty to him during a January dinner, a request to which Comey reportedly did not agree. He said the combination of asking the FBI director to drop the Flynn investigation, coupled with the loyalty pledge and that the Flynn investigation is tied to the broader Russia investigation, could make for “very strong case of obstruction of justice.”
Obstruction of justice was the charge that brought down President Richard Nixon, who resigned after Congress initiated impeachment proceedings. President Bill Clinton was also charged by Congress of obstruction of justice, but he was acquitted by the Senate after the House impeached him.
Susan Hennessey, the managing editor of Lawfare and a former National Security Agency attorney, outlined what has to take place for this ordeal to “qualify” as an obstruction of justice charge.
“There are sort of three elements of the obstruction of justice charge here,” she said on CNN. “The first is there has to be an investigation, and the individual has to know about it. On those two features, clearly Trump knew there was an investigation into Flynn. Clearly that investigation existed. It’s the third part that becomes really difficult, and that’s that you have to prove there was an improper purpose, a corrupt state of mind.”
“Now, notably, it doesn’t matter if he had proper purposes as well,” she said. “It’s that if any part of Trump’s intention here was to interfere with the investigation, that’s going to qualify as obstruction.”
Many lawmakers were quick to suggest that obstruction of justice charges could be at play. Democratic Rep. Elijah Cummings of Maryland, the ranking Democrat on the House Oversight Committee, said the matter would have to be further investigated. But he said that based on what he knows now, he thinks obstruction took place.
“This is an explosive allegation, and it appears like a textbook case of criminal obstruction of justice,” he said in a statement. “We need to hear testimony immediately from Director Comey — in public.”
His counterpart, GOP Rep. Jason Chaffetz of Utah, chair of the oversight committee, said the incident “on the surface that seems like an extraordinary use of influence to try to shutdown an investigation being done by the FBI.”
Chaffetz also tweeted that his committee will get the Comey memo “if it exists.”
“I need to see it sooner rather than later,” he wrote. “I have my subpoena pen ready.”
The Utah Republican then sent a letter to McCabe asking for all communications related to conversations between Comey and Trump by May 24.
Sen. Angus King of Maine, an independent who caucuses with the Democrats, “reluctantly” said on CNN that the incident was justifiably an obstruction case.
“I say it with sadness and reluctance,” he said. “This is not something I’ve advocated for or the word has not passed my lips in this whole tumultuous three or four months, but if indeed the president did try to tell the director of the FBI, who worked for him, that he should drop an investigation, whether it was Michael Flynn or whether it was some investigation that had nothing to do with Russia or politics or the election, that’s a very serious matter.”
Taking a look at the developments over the course of Trump’s presidency regarding Russian interference in the 2016 election and the subsequent investigations, Painter said the latest bombshell was just the most recent piece of the puzzle.
“I’m not going to say one thing is the biggest so far,” he said. “It’s all evidence of a major scandal and abuse of power.”