By Noah Feldman
If President Donald Trump asked FBI Director James Comey to stop investigating National Security Adviser Mike Flynn and his ties to Russia, that’s obstruction of justice. But let’s be clear: It’s the impeachable offense of obstruction. It’s probably not the criminal version of that act. With the evidence now available, it’s extremely unlikely that an ordinary prosecutor could convict Trump.
This is an outstanding example of a crucial distinction that Americans badly need to keep in mind. High crimes and misdemeanors, to use the Constitution’s phrase, aren’t the same as ordinary crimes. What makes them “high” is their political character.
High crimes and misdemeanors are corruption, abuse of power, and undermining the rule of law and democracy. They don’t have to satisfy all the technical aspects of an ordinary crime. And this act of Trump’s, as described in a memo written by Comey first reported Tuesday by the New York Times, probably doesn’t.
Start with the federal obstruction statute, 18 U.S.C. Section 1503. The first part of the law has to do with trying to influence jurors in the course of a trial; we can ignore it for our purposes.
The second part of the law punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
On a close reading, this isn’t a great fit with the president asking the director of the Federal Bureau of Investigation if he can let a probe go because the target is “a good guy.” Remember, as a constitutional matter, the director of the FBI, like the attorney general and the rest of the machine of federal law enforcement, works for the president.
Although there has been a strong tradition of separating investigation and prosecution from the president — a tradition grossly violated by Trump’s request — it’s still just a tradition, not a legal requirement.
Thus, as a constitutional matter, Trump has the authority to propose ending an investigation. If he wanted to, Trump could just order the investigation to be brought to an end. He wouldn’t even have to exercise his pardon power, another way to put a preemptive stop to investigations. He could just direct his subordinates to cease.
To be sure, Comey probably would have resigned had this order been given. The point is that Trump could have given it, legally speaking.
Given Trump’s inherent constitutional authority to end the Flynn investigation himself, it’s pretty hard to say that he was “corruptly” obstructing or impeding “the due administration of justice.” It’s within prosecutorial discretion to decide not to go after someone because he’s a good guy. The target’s character and career of public service are legitimate factors to consider in the course of the investigation and decision of whether to bring charges.
It’s not that the president can never be guilty of the crime of obstruction. He can. It would be a federal obstruction crime for the president to lie to or to mislead investigators. It would be an obstruction crime for the president to hide evidence of a crime. But those examples are fairly different from the president exercising authority over investigations.
The one credible legal argument that could be made by a prosecutor seeking to charge Trump would be that he was indeed acting “corruptly” if his true intent was to protect himself and his administration, not just give Flynn a break.
Suppose a president owed a favor to an organized crime leader and asked the FBI director to drop the investigation. That would presumably count as a corrupt act, and would count as obstruction.
It’s not at all clear how you could prove Trump’s intent here, except maybe by taped conversations where he says he wants to protect Flynn to protect himself. Nor is it at all clear that acting “corruptly” under the statute would include saving himself from embarrassment. The upshot is that I don’t think Trump could be prosecuted for a crime on the basis of this report, and I am not at all sure that he actually committed a federal crime, legally speaking.
Impeachment is another matter. Using the presidential office to try to shut down the investigation of a senior executive official who was also a major player in the president’s campaign is an obvious and egregious abuse of power. It’s also a gross example of undermining the rule of law.
This act is exactly the kind that the Founding Fathers would have considered a “high crime.”
And it’s a high crime the president could perform only by virtue of holding his office.
Practically, it still seems unlikely that a Republican House would impeach the president, much less that two-thirds of the Senate would vote to convict and remove him from office.
But a Democratic House would have more than enough material now to start the impeachment process — including the revelation of the request to Comey. And the House could choose to impeach even if it calculated that the Senate probably wouldn’t convict.
The act of impeachment would have tremendous symbolic ramifications. And it would include the detailed investigative oversight that so far has been lacking in Washington.
Trump’s firing of Comey now looks pretty different in the light of this news. Right around now, the president is probably asking himself whether firing the FBI director was the right decision. And if he isn’t, he should be.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.