Tag Archives: Comey

Limiting the Removal Power

28 Monday May 2018

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Qualified Tenure: Presidential Removal of the FBI Director is an article written by Leah A. Hamlin which was published in the Ohio Northern University Law Review. It addresses the question of whether the President’s power to remove an FBI director is limited by the 10-year term instituted by Congress, and whether it may, constitutionally, be further limited by Congress. Hamlin ultimately concludes:

that the ten-year term does not limit the president’s ability to remove the director at will, and that, given the importance of the FBI director to the effective functioning of a unitary executive, Congress may not limit the president’s removal power without infringing on the separation of powers limits laid out in case law.

This question is especially significant, of course, in light of the firing of James Comey which was met with such outrage, and which some believe could constitute obstruction of justice.  Though Hamlin concludes that Congress cannot not interfere with the President’s removal power, it is doubtful that her conclusion would extend so far as to suggest that Congress could not wield its impeachment power in wake of a removal which constitutes a high crime or misdemeanor.

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The Tragedy of James Comey

22 Sunday Apr 2018

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By Frank Bowman

Young lawyers become prosecutors because they want to be the good guys.  They want to become the only kind of lawyer whose obligation is not to promote the interests of sometimes morally compromised clients, but only to seek the truth and do justice.  They also quickly understand that with the mission to seek justice comes immense power — to expose evil, to root out corruption, to protect the weak, to vindicate the wronged.  Young prosecutors who make it a career begin to see themselves as members of a kind of warrior priesthood, paladins of light in an ethically murky and sometimes blackly malign world.

I know this because many years ago I was one of the young postulants of this priestly caste, and I spent fourteen of my seventeen years in practice as either a state or federal prosecutor before becoming a teacher.  As corny as it may sound, in some deep place I remain a member of my old order.  I honor its mission.  I cherish its traditions and unwritten codes.

But those who truly understand what it is to be a public prosecutor in the American democracy recognize that membership in the order comes at a price, and accompanied by a particular set of risks.

The price is two forms of self-denial.  First, a commitment to relative asceticism — career prosecutors can certainly live a comfortable middle-class life, but so long as they remain in government, they will never see the vast riches of elite private practice.  Second, but more importantly, prosecutors must abide by a set of professional norms that elevates the pursuit of justice, respect for individual rights, and protection of the justice system over personal fame.

As a federal prosecutor, you are empowered to hunt those suspected of crime, but you are obligated to wield the immense resources at your disposal with restraint and in strict accordance with the rules.  You are granted many tools to unearth evidence, but you must analyze what you find dispassionately.  While an investigation is ongoing, you may not speak about its details publicly, no matter how high-profile the target and how intense the interest of the public, the press, or elected politicians.

You are commissioned to prosecute the guilty, but may not ethically subject anyone, however dodgy you personally may think them, to the risk of criminal conviction unless you believe the evidence proves guilt beyond a reasonable doubt. Therefore, if at the close of an investigation you indict, you announce the fact and thereafter do your talking in court, not on the courthouse steps or in private leaks to reporters.

If the evidence you collect does not merit indictment, you don’t proceed.  Then, whatever your personal feelings about that may be, you say nothing, or at most make an unadorned announcement of the fact.  Your job is to prosecute crime, not to make public assessments of personal character.

In short, the job is about justice.  It’s not about you.

Prosecutors can be heroes.  But it is the self-abnegating heroism of the warrior-monk, not the self-promoting heroism of the solo knight errant who rescues maidens and slays dragons in the hope of having bards compose ballads extolling his fame.  Unsurprisingly, however, people drawn to prosecution by the promise of action in the service of virtue can be seduced into seeing themselves as the second kind of hero.

A peculiar feature of a prosecutor’s life is that, although he is formally only a cog in a notably rule-bound machine, his day to day experience is of immense personal authority.  This is particularly true in court.  When you rise in the well of a courtroom to represent the United States, you are very much on your own.  The questions you ask, the words you choose, the arguments you craft are yours and no one else’s.  Even in making the decisions to bring or dismiss or plea bargain a charge, in all but the rarest cases, the individual prosecutor’s judgment will be dispositive.

One of the risks of becoming a career prosecutor is that, because you are so often in the right and so often confront people who obviously did wrong, in time you can begin to mistake the perpetual obligation to be right with inevitably being right. And as one rises in rank, filling offices in which one commands the resources and speaks with the voice of the United States Department of Justice, the deference that comes with such roles is immense.

It requires great discipline, deep self-awareness, and a strong measure of humility to keep remembering that the job is about justice and not about you.  And that doing the job means following the rules, formal and informal, of the prosecutor’s code, even if doing so may seem unwise to you personally in the heat of the moment.

Jim Comey is an honest man, whatever the prevaricator in the White House may say.  But he has not always been a wise one. And since the second half of 2016, he has repeatedly made grievous errors that very probably changed the history of America and the world, errors he might have avoided if he had adhered to the rules and longstanding norms of the United States Department of Justice.

Comey’s first error, now somewhat obscured by later ones, was the choice to hold a press conference in July 2016 to announce and explain in detail the conclusions of the FBI about the investigation of Hillary Clinton’s email practices while Secretary of State, including its decision not to recommend an indictment.  Note what I just said — “conclusions of the FBI.”

Comey candidly admitted at the beginning of his press conference that he had not consulted the Attorney General about the recommendations he was about to discuss or the opinions he was about render.  And he knew perfectly well how aberrational this behavior was.  He said:

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

The FBI is an investigative agency subordinate to the Attorney General.  It has no independent authority to bring or not bring indictments. Deliberations about whether to bring an indictment sometimes include FBI representatives, but the final decision rests exclusively with the prosecutors of the Justice Department and ultimately with the Attorney General.  And those deliberations are conducted in private, before the final decision is made, not in the public square.

To anyone with experience in the American criminal justice system, Comey’s arrogance was simply flabbergasting. By announcing publicly what he had decided the outcome of the Clinton case should be before discussing his opinion with the Attorney General or her authorized designates he blithely assumed for himself a power no FBI Director has.

Worse, Comey’s expansive statement at the press conference flagrantly violated the Justice Department norm against discussing the details of investigations that do not result in indictment.  That kind of exposition is disfavored because it always risks besmirching the character of the uncharged target of the investigation, while providing no forum in which to rebut the inevitable stain of having drawn prosecutorial scrutiny in the first place.

When the Department breaks with that norm, the decision to do so is made by the Department’s senior leadership, not by the FBI, which is, I repeat, merely a subordinate investigative arm of the Department.  And careful thought goes into what should and should not be said.

Therefore, when Comey chose to march up to the microphones and provide a dog-and-pony show about the Clinton investigation, complete with his personal opinions about her “extreme carelessness” and the like, he committed two cardinal sins: First, he ignored the fact that, as FBI head, he was a cop, and no longer a prosecutor — that the Attorney General, not the FBI decides who gets indicted. Second, he ignored the norm that the Justice Department doesn’t “explain” decisions not to indict when the effect of the explanation will be to smear the person not indicted.

His excuse — that the “American people deserve .. details [of the FBI’s investigation and conclusions] in a case of intense public interest” — was both arrogant and in some measure disingenuous. By announcing the FBI recommendation not to indict, he effectively preempted Justice Department prosecutors.  Once the FBI Director declared that there was no prosecutable case, prosecutors could hardly have decided otherwise.

But that, of course, was not the real objective of the Comey statement.  The senior leadership of the Justice Department would surely have concurred in the recommendation not to prosecute, but would probably have issued a much more conventionally terse explanation of the decision. Instead, Comey got out front with a statement that simultaneously took credit for what, given the evidence, was the only sensible prosecutorial choice, while at the same time including enough tut-tutting disapproval of Secretary Clinton’s behavior to deflect the ire of Clinton critics on Capitol Hill and beyond from the FBI and James Comey, Esq.

But you don’t get to ignore chains of command or defining norms of prosecutorial behavior because you think it will make the FBI, or you personally, look better.  The job is about justice, not about you.

Comey’s later decision to send his infamous letter to Congress mere days before the election saying that some unexamined Clinton emails had been found on Anthony Weiner’s laptop, and that the Clinton investigation might be reopened depending on what was in them, was even less excusable.  In that case, he violated yet another important Justice Department norm, which is not to comment on the status of pending investigations immediately prior to elections.  Why does the norm exist?  Precisely in order to prevent what happened in this case: breaking news about uncharged crimes has the potential to sway elections, even if, as proved true here, the charges have no merit.

Comey’s explanations of this decision are wholly inadequate.  He poses his choice as between disclosure and “concealment,” as if there is some obligation on the part of federal law enforcement to update the public or congress on every unsubstantiated lead in an investigation.  But the norm is precisely the reverse.  The Department and subordinate law enforcement agencies like the FBI don’t comment on the status of investigations until they are complete and they don’t comment on unsubstantiated leads at all.  Particularly not less than two weeks before an election in which the subject of an investigation is a candidate.

Comey claims that he had some special obligation to inform Congress about this lead because he had previously told them that the investigation was closed and that he’d advise them if that status changed.  In the first place, the general norm against non-disclosure of investigative details doesn’t change because of loose wording in a letter from the FBI Director.  More to the point, there was absolutely nothing in Comey’s congressional letter that compelled him to disclose an unchecked lead days before the election.

Comey’s real reason was the worry that, if he had not disclosed before the election and something important was found on the laptop, then he would have been criticized by Republicans for hiding important information.  To which the only possible response is — tough!  Either disclosure or non-disclosure of uncorroborated allegations about a candidate can affect an election.  The Justice Department policy against disclosure was created with full understanding of that dilemma. But it enjoins disclosure because only nondisclosure protects a candidate — like Hillary Clinton — whose electoral prospects will definitely be damaged by the release of information that may in the end prove baseless.

The mission of the Department of Justice is to convict the guilty, yes, but also to protect the innocent.  Another part of its mission is to ensure that the process of winkling out truth does not warp the democratic process.  If you work in the Department of Justice, or for its subordinate agencies, then no matter how high you climb, the job is still about justice.  It’s not about you.

Rod Rosenstein has been sharply criticized, and not without reason given the timing, for writing the memo about Comey’s errors that Trump used to justify firing Comey.  But everything in the Rosenstein memo — the facts and the judgments — was correct.   Comey should have been fired.  The only thing that makes his firing remotely controversial is that Mr. Trump sacked him for an unwillingness to do wrong in the future, rather than for the wrongs he’d done in the past.

Jim Comey is an honest man.  Or at least as honest as any inevitably flawed human can be.  But his basic honesty comes with two intertwined flaws. First, he knows he is honest, and on balance probably more honest than many people in public life.  And that leads to a level of sanctimony dangerous in a man granted great public authority.  Because if deep down you believe that you are morally superior, then you will be tempted to break rules and norms you see as having been created to cabin the base impulses of the less pure. But the prosecutorial norms Comey violated arose over long years to protect against both corruption and misguided virtue.

Second, although Comey is honest, he also has an irrepressible need to be seen as honest, indeed as more honest, and more forthrightly, courageously honest than anybody else.  He thirsts, it would seem, to be publicly acclaimed as the the spotless hero of his own saga.  And that is an especially dangerous trait in a law enforcement official. For such officials, it is not enough to be honest. One must also possess the virtue of self-restraint in the face of public criticism and a capacity for silence unless and until the law requires speech.

By choosing to publish a book and embark on an endless round of self-promoting interviews while the Mueller investigation is ongoing, Comey, tragically, confirms that his need for self-affirmation is stronger than his loyalty to the rules and norms of the justice system he purports to be defending.  He knows that he is a central witness in a potential obstruction of justice case against the president, whether that case is made in the courts or in an impeachment inquiry.  And surely he remembers that the very last thing any prosecutor wants is for his star witness to be parading around the country giving interviews and creating all the little inconsistencies and toeholds for cross-examination that can undercut the credibility of any witness.  And yet he seemingly cannot help himself.

For those of us who love the American justice system and would defend it against the daily assaults of the man in the White House, the claim to “A Higher Loyalty” in the title of the Comey memoir is bitterly ironic.

Trump and Comey are polar opposites in virtue.  But they are doppelgangers of ego.  Neither can bear that the world might see him other than as he sees himself.  As loathsome as Trump may seem to him, Jim Comey needs to understand that he, too, is hurting the Republic.

Much ado about titillating tidbits in the Mueller investigation

26 Friday Jan 2018

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By Frank Bowman

In the last week,  several items surfaced in relation to the Mueller investigation that set the media atwitter, in both the traditional and social media senses.

First, as my invaluable RA and blog co-author Sam Crosby noted, the New York Times reports that last June Mr. Trump ordered the firing of special counsel Robert Mueller, but backed down after White House Counsel Donald McGahn threatened to resign if he followed through with the order.  Since the story broke, commentators have tended to fall into three camps.  Mr. Trump himself called the report “fake news.” (Notably, neither Mr. McGahn nor anyone else from the White House has so far denied its veracity.)  Those who accept the report as true but are disposed to defend Mr. Trump have argued that he was just blowing off steam, which is no offense.  Those who view Mr. Trump less favorably have suggested either that this event is evidence of Mr. Trump’s state of mind in relation to obstruction of justice (i.e., it tends to prove that actions like firing James Comey were undertaken for the purpose of obstructing the Russia investigation), or that the rescinded order was itself an attempt to obstruct justice.

On this one, I’m more sympathetic than usual to the pro-Trump camp. Standing alone, Trump’s reported order is of no consequence.  NEWS FLASH: President decides to do something politically stupid and possibly illegal, but is talked out of it!  That’s not a crime. It’s not an impeachable offense. At most it demonstrates, as if more demonstration were needed, the extraordinary variability of our wayward chief executive’s brain.

As for the multiple commentators straining to make Mr. Trump’s almost-firing of Mueller part of the mosaic of evidence in a case of obstruction of justice, well, yeah, I guess it adds a teensy bit to the argument that Mr. Trump had a corrupt purpose in firing Mr. Comey.  But, let’s face it, not much.  Bob Mueller’s job, after all, is to be a highly public thorn in the president’s side.  The temptation to sack him would be intense, even for a president who was both entirely innocent and far more temperate than Mr. Trump.  Nearly yielding to that temptation, but pulling up short of actually doing it, just doesn’t prove much.

The week’s other big Trump-Mueller story was Mr. Trump’s apparently off-the-cuff declarations that he’d be happy to talk on the record, under oath, to Mueller’s investigators.  This was treated as earth-shaking news, perhaps signaling confidence by White House counsel and Mr. Trump’s private lawyers that the Mueller investigation would be winding up soon with nothing untoward to report about Mr. Trump.  This interpretation survived for a few hours — roughly the period it took for Mr. Trump’s lawyers to pick themselves up off the floor, swear colorfully at their client’s incorrigible refusal to listen to their advice, knock back a neat whiskey or two, and then get on the phones to start walking the story back.

Personally, I put Mr. Trump’s assertion that he looks forward to talking with the Mueller team, under oath or otherwise, in the same bin with his statements  during the campaign that he would release his tax returns once they were no longer under audit.  Mr. Trump’s whole life is a saga of promises blithely made and even more blithely broken.  His egotism may persuade him that he could dance nimbly through the minefield of an encounter with really good prosecutors.  But my bet is that his lawyers will dissuade him from a voluntary interview by Mr. Mueller, and that they will resist any effort to compel an appearance before a grand jury.

In short, nothing much of consequence happened this week on the Mueller front. Stay tuned.

Trump Called to have Mueller Fired

26 Friday Jan 2018

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Reports that President Trump called to have Special Counsel Robert Mueller fired surfaced last night. The request came only a month after Former FBI Director James Comey was fired, and soon after it was revealed that Mueller would be invesitgating potential charges for obstruction of justice against the President. Apparently, White house counsel Don McGahn refused to initiate the firing, because he did not agree with the President’s reasons for doing so (the President cited several conflicts of interest he believed Mueller had).

Trump denies that he asked that Mueller be fired, and Former White House Communications Director Anthony Scaramucci said the accusation was irrelevant because Mueller was not actually fired. However, it may not be so irrelevant. As discussed by Professor Bowman previously on this blog, 18 United States Code, Section 1512(c) outlaws a corrupt attempt to obstruct, influence, or impede an actual or impending proceeding. If the President’s request that Mueller be fired could constitute a corrupt attempt, that may mean additional charges for obstruction of justice against Trump.

mueller-fbi.jpgJ. SCOTT APPLEWHITE/AP

The Firing of Flynn and Comey

24 Wednesday Jan 2018

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Special Counsel Robert Mueller is  seeking to interview President Trump about the firing of former FBI Director James Comey and the departure of former national security adviser Michael Flynn. Comey was in the midst of an investigation of Trump’s campaign’s connections with Russia when he was fired by the President, and Flynn resigned, apparently under pressure from the President, for lying about his contacts with the Russian Ambassador, Sergey Kislyak.

The firing of Comey has often been cited as obstruction of justice, and the removal of both Comey and Flynn could indicate that the President is guilty of collusion. Regardless of whether that is the case, however, Mueller’s attempts to interview the President indicate that he is nearing the end of his investigation. Whether the President will submit to an interview remains to be seen.

170517210646-comey-mueller-super-tease.jpgNicholas Kamm/AFP/Getty Images

 

FBI Director Pressured to Remove Deputy Director

23 Tuesday Jan 2018

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FBI Director, Christopher Wray threatened to resign if Deputy FBI Director, Andrew McCabe, was removed from his post. Attorney General Jeff Session apparently pressured Wray to remove both McCabe and the FBI’s lawyer James Baker from their posts (though it is unclear whether that meant firing or transfering the two). Baker was reassigned last year. President Trump has also made his distaste for the Deputy Director known via twitter, apparently for the way he handled Hillary Clinton’s email scandal.

The pressures Wray is facing remind me of the firing of former FBI Director James Comey, who was in the midst of investigating Trump’s connections with Russia when his position was terminated. Commentators feel that the firing of James Comey could constitute obstruction of justice, a potentially impeachable offense. The pressure to remove to McCabe would likely not constitute further obstruction of justice, as it unclear that McCabe is currently involved in the investigation of Russian collusion. However, the pressure put on Wray does show a pattern of interference with the FBI which paints the President in a negative light. One would think that after the firing of Comey, the White House would take a hands off approach.

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Mueller to Interview Trump

09 Tuesday Jan 2018

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Special Counsel Mueller intends to interview President Trump soon, a decision which some believe signals the nearing of the end of his investigation. Though Trump has said that he is happy to talk about Russian collusion, a conversation he believes he will clear his name, his lawyers are scrambling to find a way to avoid or limit Mueller’s interview. Commentators believe what they are trying to avoid are questions about obstruction of justice: namely the firing of former FBI Director James Comey, and the lies former national security adviser, Michael Flynn, told the FBI.

Regardless of the motive for the interview, however, the timing could not be better for Democrats. With the 2018 midterms fast approaching, should Mueller’s investigation come to a close soon, its results may be a boon to Democrats running for Congress. And of course, if Democrats are able to obtain a majority in the House and Senate, impeachment will become more likely.

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A Note on Mueller

15 Sunday Oct 2017

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This article from the Nation closely examines Robert Mueller’s special-counsel investigation, and where it might end up. It notes the possibility that Mueller will bend to political pressure, or that President Trump will interfere with the investigation as he did by firing Comey. However, the more likely result is that Mueller will simply hand over his findings to Congress and let them do what they will with it. Which brings us back to the political question. Can a majority Republican Congress oust Trump? Or is his base to loyal and large to allow it?

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Painter Comments on Mueller’s Investigation

23 Saturday Sep 2017

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Former White House ethics lawyer, Richard Painter, commented on Mueller’s investigation into the firing of former FBI Director, James Comey.  He claims that Trump’s motivation for the firing is central to the potential obstruction of justice charges, which he believes is tied to a meeting the President had with Russian officials the day after.

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OBSTRUCTION OF JUSTICE: Part 3 – The mental state of acting “corruptly”

02 Sunday Jul 2017

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In two previous posts, I considered the applicability of two obstruction of justice statutes, 18 United States Code, Sections 1503 and 1512, to the conduct of Donald Trump in connection with his February 14, 2017, meeting with then-FBI Director James Comey and Mr. Comey’s subsequent firing.

I concluded that the technical requirements of both statutes might be met in Mr. Trump’s case, but that a prosecution under Section 1512(b)(3) or 1512(c) would be somewhat simpler than one under Section 1503.

I left for the present post the far more difficult question of whether a prosecutor could prove the mental state common to both Sections 1503 and 1512, which is that a defendant acted “corruptly.”

“Corruptly” – The culpable mental state for obstruction of justice

Before considering “corruptly” itself, it is useful to step back and, as it were, diagram the crime of obstruction of justice. All the obstruction statutes require that the defendant act in some way that has, or reasonably might have, the effect of halting, delaying, influencing, or perverting the course of justice, broadly defined as an actual legal or congressional proceeding or the judicial or administrative preliminaries to such a proceeding. The word “corruptly” serves a critical function in all such statutes because there is an infinitude of entirely legal acts that can influence, impede, delay, or obstruct (in the sense of slowing, making more difficult, or stopping entirely) legal proceedings.

For example, a private person may refuse a government official’s request for information in the absence of a subpoena, warrant, or other proper legal process, or remind others confronted with such a government demand that they have a right to decline. A corporation sued by the government surely delays, and may frustrate altogether, the government’s case by retaining counsel and defending the action. More to the present point, government officials themselves routinely delay or halt altogether legally meritorious claims. Every day government officials decide to delay, decline, or not investigate thousands of legally sustainable civil and criminal claims. Sometimes these are individual exercises of what we call “prosecutorial discretion” in which government officials balance the equities in particular cases. Sometimes they are policy choices such as not pursuing deportation of some classes of undocumented aliens or not prosecuting federally marijuana vendors operating in states that have legalized medical or recreational use of the drug.

The dividing line between legal behavior and criminal obstruction of justice is the mental state requirement that the defendant act “corruptly.”

 What does “corruptly” mean?

“Corruptly” is used in many federal criminal statutes, but it is a famously uncertain term, about which one court wrote, “There is no hope in one opinion of providing a definitive gloss on the word ‘corruptly’; neither would it be wise to try.”   Happily, we needn’t arrive at a single, all-embracing, definition of “corruptly.” For purposes of a possible obstruction prosecution of Mr. Trump for the Comey/Russia investigation, we need settle only a few basic points.

“Corruptly” is defined in 18 U.S.C. 1515(b) to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” Section 1515(b) limits this definition to use of the term in 18 U.S.C. 1505 (Obstruction of proceedings before, departments, agencies, and committees). It nonetheless seems reasonable to assume that this definition has at least persuasive force when construing the same term in Sections 1503 and 1512. Still, the operative core of the 1515(b) definition is that the defendant acted “with an improper purpose,” but that doesn’t really tell us very much. So we have to look at cases.

Acts illegal in themselves vs. Acts made illegal by corrupt intent

Let’s begin with a distinction between two kinds of defendant conduct: (1) acts which are themselves either illegal or self-evidently wrongful even if not technically illegal, and (2) acts which would be perfectly legal absent a corrupt motive.

Examples of the first category would be lying to a grand jury, United States v. Carson, 560 F.3d 566, 573 (6th Cir. 2009); forging a court order in a federal civil action (an act independently prosecutable under 18 U.S.C. 505), United States v. Reich 479 F3d 179 (2d Cir. 2007); bribing someone to withhold information from a criminal investigation, United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997); or requesting that a witness lie to a court or government agent in support of the defendant’s theory of the case, United States v. Petruk, 781 F.3d 438 (8th Cir. 2015), United States v. Khatami, 280 F.3d 907 (9th Cir. 2002). In these cases, the defendant not only acted in ways calculated to affect a proceeding, but employed methods so obviously wrong in themselves that the corrupt intention was plain.

The trickier cases are those in which the defendant’s acts are of a type not inherently wrongful, but are made criminal by his “corrupt” motive. The Supreme Court considered this sort of conduct in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), which involved the conviction of the accounting firm for destroying audit documents that might be sought by government prosecutors. The Supreme Court reversed that conviction because merely making information unavailable to the government, or persuading another to do so, is not necessarily illegal. For example, a lawyer may, entirely properly, advise a client to withhold documents under a legal privilege. Or a spouse may urge a marital partner to invoke a marital testimonial privilege. United States v. Doss, 630 F.3d 1181, 1189-90 (9th Cir. 2011). The jury instruction in Arthur Andersen was improper because it omitted any requirement that the act of withholding information be dishonest or wrongful.

As one lower court put it, the term “corruptly” is important because it requires “that jurors believe that the defendants were conscious of their wrongdoing.” United States v. Coppin, 569 Fed. Appx. 326 (5th Cir. 2014).

That said, courts routinely hold that otherwise legal conduct can amount to criminal obstruction if undertaken “corruptly,” in the sense of dishonestly, wrongfully, or immorally. United States v. Matthews, 505 F.3d 698, 704-708 (7th Cir. 2007). For example, a lawyer representing a criminal client has been found guilty of obstruction for using legal maneuvers to expose and frustrate an FBI undercover investigation into gambling activities in which both the lawyer and his client had large financial stakes. United States v. Cueto, 151 F.3d 620 (7th Cir. 1998).

Dershowitz and Gingrich are wrong (mostly)

Which brings us to the claims by Professor Dershowitz and former Speaker Gingrich that a president cannot commit obstruction of justice. Both men seemingly rest their arguments on the fact that the President of the United States has the legal power to perform the acts suspected to be criminally obstructive – requesting (or, if you prefer, obliquely ordering) the Director of the FBI to cease investigating General Flynn, and later firing that Director when the request was not honored.

The president’s power to fire the FBI Director is plain and derives from the Appointments Clause of Article II of the Constitution. The source of his power to stop a federal criminal investigation or prevent the filing of a criminal case is a little less obvious. Without getting too deep in the weeds, it flows from several related facts.

First, in the United States, prosecutors and policemen do not have a legal obligation to investigate every possible crime or to prosecute every provable crime. Instead, both policemen and prosecutors are vested with broad discretion to refrain from investigating or prosecuting criminal conduct.

Second, all of the investigative and prosecutorial officials involved in the Flynn/Russia investigation are presidential appointees who, as a constitutional matter, derive their authority from the president. Although there has arisen a well-understood norm that presidents should not directly intervene in criminal investigations or prosecutions, particularly if the case involves persons close to the president, that is a norm, not a rule.

Therefore, as a constitutional matter, it would appear that a president has the same authority as the Attorney General, the FBI Director, or any of their subordinates to decline even a legally meritorious prosecution. Likewise, if an FBI Director refuses an order, or even a strongly worded hint, that a case ought to be dropped, the president has the power to fire him because of his refusal.

Where Dershowitz and Gingrich miss the boat is in implying that the existence of such presidential power resolves the question of obstruction. Merely because a government official does an act within his technical authority does not automatically exempt him from an obstruction prosecution. A judge has the legal power to dismiss a case for insufficient evidence, but if the judge takes that step because he has been bribed or because he knows the defendant, if convicted, may implicate the judge in wrongdoing, then an exercise of legal power becomes corrupt and a crime.

If it could be proven that Mr. Trump urged, or ordered, Director Comey to discontinue the Flynn investigation and then fired the Director for non-compliance, and did so “corruptly,” then the President would be in violation of one or more of the obstruction statutes.

Did Mr. Trump act “corruptly”?

This is the heart of the matter. And, given the currently available facts, proving corrupt intent would be extraordinarily tough.

First, as Andrew McCarthy of National Review contends, Trump’s conversation with Comey about General Flynn can be characterized as nothing more than an expression of the opinion that, in light of Flynn’s long record of public service, prosecuting him would be “overkill.” If that’s all it was, prosecutors routinely decline cases on similar grounds.   And, if that’s all it was, as McCarthy observes, “A president does not corruptly impede an investigation by deciding that the equities weigh in favor of halting it. That is a decision the president gets to make.”

The problem for McCarthy’s argument is that it focuses too narrowly on the one Trump-Comey talk about Flynn and ignores substantial evidence — from Mr. Trump’s own mouth – that the Comey talk and subsequent firing had less to do with the equities of General Flynn’s individual case than with Mr. Trump’s concerns about the broader investigation into his campaign’s connections to Russian meddling in the election. Mr. Trump told Lester Holt of NBC News that he was thinking about the “Russia thing” when he fired Comey. And the day after Comey’s firing, he supposedly told Russian officials that firing Comey relieved “pressure” over Russia.

In light of these statements, the claim that Trump’s efforts to get the Flynn case dropped were merely expressions of personal compassion unconnected to the panoply of other investigations with personal ramifications for Trump and his administration are deeply unconvincing.

Nonetheless, even if it could be shown that Trump’s motive throughout his interactions with Comey was to influence or quash the Russian investigation, that might not be enough. As Randall Eliason has pointed out, obstruction only occurs if a defendant’s acts have the “natural and probable effect” of influencing a proceeding, and even firing an FBI director would not necessarily stop the broader Russia investigation.

More to the point, a presidential decision to delay or entirely quash a criminal investigation – even one that threatens damage to his own administration – is not necessarily “corrupt.” Let us for a moment take Mr. Trump at his word. He asserts that the aspect of the Russia investigation concerning collusion between his campaign and Russian operatives is baseless, a dry well, or in his preferred phrase, “fake news.” Assume (however much you may want to believe otherwise) that he is right – and in the end he may be proven so. Assume at the least that he believes this to be true.

If that is the case, then his actions to date can be seen as no more than efforts to stop a factually baseless investigation that is undermining his administration and its program both domestically and abroad, and thus, in his eyes, adversely affecting the interests of the United States. And this is where Professor Dershowitz’s absolutism gets at least a tiny tip of the hat. Regardless of how clumsy, unseemly, and downright suspicious Mr. Trump’s behavior looks, this is the kind of judgment a president is empowered to make.

Professors Daniel Hemel and Eric Posner contend, in effect, that a president’s conduct should be judged by the same standards that would govern an ordinary prosecutor, pointing to internal Justice Department regulations prohibiting participation in investigations of persons with whom the prosecutor has a “personal or political relationship.” Leaving to one side the fact that the cited regulations expressly disclaim creating any enforceable legal right, they are transparently inappropriate as a template for criminal liability of a president. A president can fairly be said to have a “political relationship” with, at the very least, every appointed official in the executive branch, every member of congress, and most high-ranking state officials, not to speak of the legions of non-governmental political actors who populate electoral campaigns. Literal application of the Hemel-Posner standard would debar a president from having any input on the investigation or prosecution of virtually the entire American governmental and political class. While some might think that desirable, it is surely not the law.

Nonetheless, Hemel and Posner are right, and Dershowitz and Gingrich are wrong, that this president could be guilty of obstruction of justice.

If the investigation reveals Trump campaign-Russia collusion, or financial shenanigans by the Trump campaign or his family, or other as-yet unsuspected wrongdoing by Trump or those close to him, then Trump’s good-faith defense to obstruction would be crippled. He might nonetheless claim ignorance of whatever malfeasance emerged, but that would likely be a tough sell. Even for a president, trying to stop an investigation you know or fear could lead to charges against you, your family, or senior members of your administration is to act “corruptly.”  Because in such a case, your motive is self-protection, rather than promotion of the public good.

For a would-be prosecutor, however, this is not much consolation. Because where we end up is that, under these peculiar circumstances, obstruction cannot be proven so long as Trump can plausibly maintain that he believed the Flynn/Russia investigation was baseless and therefore harmful to American interests. Proving obstruction would require proof that there was underlying misconduct that Trump knew or feared would be revealed by the Russia investigation.

           In short, obstruction of justice is not the silver bullet despairing liberals pine for. In this case, the old bromide, “it’s not the crime, it’s the cover-up,” does not apply. Before Mr. Trump could plausibly be charged with obstruction of justice, the investigation he is alleged to be thwarting would have to find evidence of a crime he was seeking to conceal.

Even this, to some, unsatisfactory conclusion leaves unanswered four other critical questions: (1) Can a president be indicted for crime during his term in office? (2) Will this or any Justice Department bring such an indictment? (3) Even if a Justice Department can and would proceed with an indictment of a sitting president, can a sitting president who has been indicted simply pardon himself? (4) Most importantly, even if a sitting president is effectively immune from criminal indictment, can conduct that would be indictable were the defendant not president be the basis of impeachment proceedings?

I will address these issues in subsequent posts.