The report in The New York Times that President Donald Trump in February asked James B. Comey, the former FBI director, to stop the investigation of his former national security adviser, Michael T. Flynn, by saying “I hope you can let this go” has fueled talk of possible obstruction of justice.
Add this to Trump’s firing of Comey a week ago for his persistence in the investigation of Russian interference in the election, and it seems to some like a clear case of interference in a federal investigation.
Although it is easy to claim that a crime might have been committed — especially for political purposes — it turns out that proving obstruction of justice is far more difficult in a criminal prosecution.
Mueller can look into 'all related matters'
The appointment of Robert S. Mueller III, a former FBI director, as special counsel covers the investigation of possible Russian interference with the 2016 election “and related matters.” Mueller has a broad mandate under Justice Department regulations to investigate matters that include any interference with his office, “such as perjury, obstruction of justice, destruction of evidence and intimidation of witnesses.” That can include seeking out evidence that the president improperly sought to block the investigation of Flynn.
Proving necessary intent
Any inquiry into possible obstruction will confront Supreme Court decisions that have been notably hostile to obstruction cases that push the limits of the law. There is plenty of wiggle room in the statutes that make it difficult to prove the necessary intent to obstruct justice, so gathering credible evidence to show what was in the mind of anyone who might try to impede the investigation will be paramount.
There are numerous laws dealing with different types of obstructive conduct in the federal criminal code, like witness tampering, interfering with a federal audit and the examination of a bank. Three broad provisions might apply to the president’s dealings with Comey, but each has limitations that would require more evidence than currently available to prove a crime.
Precedent on the books
First, a section of 18 U.S.C. 1503 known as the omnibus clause makes it a crime to “corruptly” endeavor “to influence, obstruct or impede the due administration of justice.” That provision applies only to interference with judicial proceedings, which includes a grand jury investigation.
In United States v. Aguilar, the Supreme Court took a narrow view of the statute’s reach in a prosecution of a federal district judge in California charged with obstruction for lying to FBI agents about his knowledge of a wiretap and for warning a target of the investigation about the inquiry. The government claimed that those agents might testify before a grand jury, and therefore the conduct obstructed that proceeding.
The Supreme Court held that a violation of the omnibus clause required showing a “nexus” between the obstructive conduct and the proceeding, not just that misleading the agents could have affected how the case developed.
"We do not believe that uttering false statements to an investigating agent — and that seems to be all that was proved here — who might or might not testify before a grand jury is sufficient to make out a violation of the catchall provision of 1503,” Chief Justice William H. Rehnquist wrote in the majority opinion.
What exactly did Trump say to Comey?
Trump’s statement to Comey about the investigation of Flynn — if it was made — and the later firing might have some impact on the FBI investigation, although it is not entirely clear how much because the director is not involved in the day-to-day conduct of the inquiry. The Times reported on Thursday that the White House knew Flynn was under investigation when he was appointed, and that a grand jury has now issued subpoenas in the case, but there is no information available at this point that it had been convened in February when Trump spoke with Comey.
The mere prospect of a grand jury proceeding is not enough under the Aguilar decision to constitute an obstruction of justice, even if the president’s statement could be construed to go that far.
Provision covers shredding of documents
A second provision frequently used is 18 U.S.C. 1512(c), which makes it a crime for any person who corruptly “otherwise obstructs, influences or impedes any official proceeding, or attempts to do so.” Congress added this subsection in 2002 as part of the Sarbanes-Oxley Act to broaden the reach of the obstruction of justice provision to more clearly include conduct like that involving the accounting firm Arthur Andersen’s shredding of documents related to its audit of Enron.
The firm was convicted in 2002 even without this change in the law, but the Supreme Court subsequently reversed the jury verdict in Arthur Andersen v. United States because the trial judge gave a flawed instruction on what constituted “corruptly.” The court, with Rehnquist writing the unanimous opinion, explained that corrupt conduct was “normally associated with wrongful, immoral, depraved or evil” actions, which requires a consciousness of wrongdoing rather than just a questionable result.
Comparisons to Nixon and the ‘smoking gun’
There have been comparisons of Trump’s statements to the Watergate cover-up that toppled President Richard Nixon in 1974. The “smoking gun” recording in that case, however, was much more incriminating as Nixon told H.R. Halderman, his chief of staff, six days after the break-in that the CIA needed to tell the FBI “don’t go any further into this case.”
Whether Trump could be found to have the requisite intent is not clear from the memorandum Comey is reported to have written about their conversation in February. Asking the FBI director to “let this go” regarding Flynn is the type of ambiguous comment that might not be interpreted as directly interfering in the investigation, and therefore insufficient to establish a corrupt intent.
Another hurdle: ‘Official proceeding’
Another hurdle to a prosecution for violation of 1512(c) is that the conduct must involve an “official proceeding.” The 9th U.S. Circuit Court of Appeals, which has been frequently castigated by Trump, held in United States v. Ermoian that interference in an FBI investigation was not the type of proceeding the statute was meant to cover.
Although other courts take a broader view of the law to include law enforcement investigations, there is enough ambiguity to bolster the claim that even if the statement to Comey might be construed as interference with the FBI’s investigation, there was no proceeding to obstruct under the statute.
Contemplation and tangible objects
A third statute, also added by the Sarbanes-Oxley Act, is 18 U.S.C. 1519, which reaches conduct in “contemplation” of obstructing a possible investigation even if one has not yet begun. Although this is broader than other obstruction statutes, the problem is that this law covers only the destruction or alteration of “any record, document or tangible object.”
The Supreme Court showed its continuing hostility to a broad application of the statute in Yates v. United States, finding that the term “tangible object” did not include an undersize fish destroyed to keep a law enforcement agent from gathering evidence of a violation. Instead, the majority read the law narrowly to reach only objects that preserve or store information, not everything with a physical existence.
Trump referred in a Twitter post to the possibility of “tapes” of meetings with Comey, warning him to be careful in what he said about their discussions. While recordings — if they exist — would qualify as a “tangible object” under 1519, an oral conversation asking for an investigation to stop would fall outside the scope of this statute.
‘An often murky crime’
Obstruction of justice is, as The Times noted, “an often murky crime,” but whether a possible violation should be investigated is a different question. A federal grand jury under Mueller’s direction could look at any potential violations of federal law, even just to assure itself that the law had been upheld.
The power of Congress to investigate is arguably broader, so that anything affecting the federal government is subject to an inquiry on Capitol Hill.
As we have seen in cases stretching from Watergate to Whitewater to the prosecution of I. Lewis Libby, chief of staff for Vice President Dick Cheney, investigations tend to take on a life of their own, often uncovering new information that can send the matter in a different direction.
Proving obstruction of justice in a criminal prosecution may not be as easy as it is made out to be, but the court of public opinion operates on a very different standard from proof beyond a reasonable doubt.