What Fresh Hell Is This?

June 8, 2017

Comey Statement - Obstruction of Justice or Not?

First, read the statement.

It was released by the Senate Intelligence Committee yesterday.

So who's saying it's enough for an Obstruction charge and who isn't?

Jeffrey Toobin, of CNN:
Jonathan Turley, at USAToday:
The release of former FBI director James Comey's testimony on Wednesday was received with the same breathless reactions that have long characterized coverage of the Russian investigation. CNN ran comments that the Comey testimony was nothing short of the Watergate tapes. The desire for some indictable or impeachable offense by President Trump has distorted the legal analysis to an alarming degree. Analysts seem far too thrilled by the possibility of a crime by Trump. The legal fact is that Comey's testimony does not establish a prima facie — or even a strong — case for obstruction.
Lawfare has a good legaleze-filled analysis.  It all depends, as I read it, on the definition of "proceeding" and whether there is one:
There’s been a lot of talk of obstruction of justice of late, and we’ve been part of it. In the three weeks since President Trump fired FBI Director James Comey and two weeks since the New York Times bombshell report that Trump had asked Comey to drop the investigation into former National Security Adviser Michael Flynn, many commentators have examined whether evidence of President Trump’s behavior currently in the public record amounts to a prima facie case of obstruction of justice. In several prior pieces on Lawfare, writers looked at the question of how big a problem President Trump has under the obstruction statute.

The U.S. Attorneys’ Manual breaks down the three elements of an obstruction charge: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

Our previous analysis focused on the third, and seemingly most complex, element: whether Trump’s conduct qualified as an effort to influence, obstruct, or impede justice and whether there is evidence that he possessed the requisite mental state to do so “corruptly.” Indeed, we took the first two elements as a given: “Here, the first two elements are abundantly clear. Assuming the Times account is correct, there was clearly an investigation, and Trump clearly knew about it.”

Not so fast, as it turns out. That statement missed an important and complex question—and one that may actually shield President Trump from exposure under the obstruction statute (though not under the impeachment clauses): whether an FBI investigation even counts as a “pending proceeding” for purposes of the agency obstruction of justice statute, 18 U.S.C. § 1505.
On the other hand, it ends with this:
In other words, it’s perfectly possible that Trump’s conduct is not cognizable as a violation of § 1505 but that Congress regards it nonetheless as a gross abuse of power for purposes of the impeachment clauses. In its impeachment function, Congress may not care how courts have narrowly defined “proceeding” or how precisely the conduct at issue maps onto to any specific criminal statute. Notably, Richard Nixon’s articles of impeachment charged “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States [and] the Federal Bureau of Investigation.” The articles cite no criminal statute at all.
So there's that.


Deplorable Omega Supreme Cuck said...

Obama's Attorney General tried to obstruct justice in order to help Hillary Clinton.
COMEY: AG Lynch told him to call Clinton email probe a "matter" and not an "investigation."

Ol' Froth said...

Did Lynch tell Comey to drop the probe? Oh, she didn't. Well, there goes THAT false equivalence.