WASHINGTON — Fired FBI Director James Comey publicly confirmed for the first time Wednesday a series of “very concerning,” “very awkward” and “inappropriate” conversations with President Donald Trump that concerned him “greatly” — but do these interactions rise to the level of obstruction of justice?
Some legal experts say this isn’t a close call.
“Let’s just keep this in perspective. There is a criminal investigation going on of one of the President’s top associates, his former national security adviser, one of the most … important people in the government. He gets fired. He’s under criminal investigation and the President brings in the FBI director and says, please stop your investigation,” said CNN senior legal analyst Jeffrey Toobin on CNN’s Newsroom. “If that isn’t obstruction of justice, I don’t know what is.”
But others cautioned that proving the President acted with a specific intent to obstruct an official proceeding from a legal standpoint still poses significant challenges.
“This moves the ball forward, but whether it moves the ball past the finish line will be up for debate,” said former federal prosecutor Renato Mariotti, now a partner at Thompson Coburn. “The key question here is whether the President acted with corrupt intent and, to determine what his intent was, we have to look at all the facts and circumstances surrounding the case.”
The facts and circumstances described in Comey’s planned testimony are eyebrow-raising, and two details in particular struck some legal experts as particularly problematic. First, Trump repeatedly implored Comey to lift the “cloud” of the Russia investigation hanging over him. Second, Trump asked Attorney General Jeff Sessions and others to leave during a February 14 meeting so that the President could speak with Comey alone.
“The fact that he asks Comey to be alone with him is problematic and indicates a state of mind,” said Michael Zeldin, a former top official at the Justice Department. “Why would you ask the AG to leave the room? It seems to imply some ulterior motive. He asks for something that is inappropriate to ask for. … This is getting closer and closer to an indictable case.”
William Yeomans, a 26-year veteran of the Justice Department and fellow at American University Law School, agreed that Comey’s new testimony doesn’t help the President.
“I think Comey’s testimony contributes circumstantially to what is already clear obstruction of justice,” Yeomans explained. “Here, the obstructor very unwisely announced his intent. His efforts to get Comey to back off of Flynn and his reported effort to get intelligence officials to intervene with the FBI provide further, unnecessary, support for his confession.”
But others say not so fast.
“It is understandable that Comey would see this as inappropriate. That does not make it criminal,” said Andrew McCarthy, a former federal prosecutor who writes for the conservative National Review.
“You can disagree with Trump’s reasoning, but it is clearly not corrupt, which is the sine qua non of obstruction,” McCarthy added. “Plus, to repeat, he did not order Comey to end the investigation. Pressuring a subordinate is not obstruction. Trump allowed Comey to continue exercising his discretion, though he did express hope about how that exercise would turn out.”
GOP lobbyist David Urban echoed the same point on CNN’s “The Lead” with Jake Tapper.
“Pressure doesn’t equal obstruction. Comey was a tough guy who hearkens back to the Bush days,” Urban said. “He knows what pressure is and what it isn’t.”
But Steve Vladeck, CNN legal analyst and professor of law at the University of Texas School of Law, suggested everyone is missing the point — apart from anything gleaned from Comey’s new testimony, Trump fired him.
“I think the key is that the most significant step Trump appears to have taken is not his specific discussions with Comey, but his decision to fire Comey entirely because of his dissatisfaction with the shape and progress of the Russia investigation,” Vladeck explained. “On Flynn, it devolves into a fight over what Trump intended and what Comey understood him to intend. Contrast that with firing Comey, where there’s nowhere near the same mess about why he did it.”