James Comey’s public testimony exonerates President Trump of obstruction of justice.
To put it simply, “hoping” that something happens is not a crime. The law demands much more than that. Felony obstruction requires that the person seeking to obstruct a law enforcement investigation act “corruptly.” The statute specifically defines what that includes: threats, lies, bribes, destruction of documents, and altering or concealing evidence. None of that is alleged by Comey.
Instead, the fired FBI Director recounts how President Trump expressed compassion for the man he dismissed as his National Security Adviser, calling Michael Flynn “a good guy” who “has been through a lot.” Comey agreed. Then the president said, “I hope you can see your way clear to letting this go, to letting Flynn go.”
The president’s statement is not an order or mandate. It is not even a “request,” though Comey insists he understood it to be. But even if we construe it as such, it is not enough to constitute obstruction. Not even close. There must be a “corrupt” act that accompanies the directive.
For example, if the president had said, “Bury whatever incriminating evidence you have, exonerate Flynn, and terminate the investigation of him entirely… or I will fire you.” That is, arguably, obstruction. It includes two corrupt elements –a threat and concealing evidence. However, this is not what happened.
Comey knows all this. Sen. James Risch, R-Idaho, posed the key question: “Do you know of any case in which someone has been charged with obstruction based on the word ‘hope’?” Comey answered, “I don’t.” On that point, Comey is correct.
Hoping or wishing for an outcome bears no resemblance to the crime of obstruction as defined not just by statute, but by the U.S. Supreme Court in the 2005 case of Arthur Anderson v. United States.
Intelligence Committee Chairman, Sen. Richard Burr, R-N.C., asked Comey quite directly, “Was the president trying to obstruct justice?” As expected, Comey demurred by claiming, “It’s not for me to say.” While there is no legal basis for declining to answer the pivotal question, Comey dodged it for a reason. If he said, under oath, that he regarded the president’s words as obstruction, Comey would have incriminated himself in a crime known as “misprision of felony.”
As explained in an earlier column, the law imposes an affirmative duty on federal officials, like Comey, to immediately report knowledge of a felony such as obstruction to a person in authority. In the case of an FBI Director, his superior is the Assistant Attorney General at the Department of Justice. Comey admitted he did not tell anyone at DOJ. His excuses were legally vacuous.
Thus, one can conclude that Comey either did not believe the president obstructed justice (and, therefore, had no duty to report it) or he did not want to put himself in legal jeopardy.
Comey was pressed on the issue. Unbelievably, he claimed he did not know whether FBI agents have a duty to report a crime that has been committed:
Question: “You’re unsure whether they would have a legal duty?”
Answer: “That’s a good question. I’ve not thought about that before. (pause) There is a statute that prohibits misprision of a felony -- knowing of a felony and taking steps to conceal it. But this is a different question.”
No, Mr. Comey, it is not a different question. It is a fundamental legal obligation for all people who serve in law enforcement. The head of the FBI should know that.
Regardless, the entire question of obstruction was rendered moot and meaningless by Comey himself when he endorsed what constitutional scholars, including Harvard Law Professor Emeritus Alan Dershowitz, have long maintained. That is, the president has the constitutional authority to stop investigations and prosecutions.
“I’m not a legal scholar…but as a legal matter, the president is head of the executive branch and could direct, in theory, that anybody be investigated or not be investigated,” admitted Comey.
Comey Leaked His Memo
Obstruction aside, one of the more stunning moments during the hearing came when Comey confessed that he deliberately leaked to “a friend” the contents of the memo memorializing his conversation with Trump… so that it would then be leaked to the media. Comey said it was his personal property. Wrong.
Under the Federal Records Act and the FBI’s own Records Management regulations, “any document that is made in the course of business” is the property not of the person who authored it, but the property of the U.S. government. And so are its contents. It matters not whether the document, as this one, is unclassified.
Comey improperly and, perhaps, unlawfully leaked a government document involving an FBI investigation. Comey admitted he did it to prompt the appointment of a special counsel who is now tasked with examining Russia’s interference in the presidential election. At the very least, Comey violated government rules by converting government property for his own use. It does not matter, legally, that he was no longer employed by the FBI. Is it a crime?
Under 18 USC 793 (“Leaking Non-Classified Information”), it is a crime punishable by up to 10 years imprisonment to “willfully communicate or transmit national defense information,” even though it is not classified. While the contents of the memo do not deal directly with national defense matters, the overall investigation does. So it is debatable whether Comey could be charged.
If nothing else, Comey’s leak appears to be a rather sleazy tactic designed to harm the president. How can he justify publicizing his own self-serving narrative while admitting in his testimony that he resisted all attempts by the president to publicize the truth that Trump was not personally under investigation? He cannot.
It is equally disgraceful that Comey appears to have purposefully written his memo as an unclassified document so that he could later use it to his advantage by leaking it to the public without committing a serious crime. Making it classified, he told the committee, “would tangle it up.” In other words, he manipulated the classification system to exploit the political damage his document might cause.
Comey’s testimony did manage to put to rest the constant accusation that President Trump attempted to quash the Russian investigation. Sen. Burr inquired, “Did the president at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. elections?” Comey replied, “Not to my understanding, no.”
As anticipated, Comey trashed Trump in a manner that is typical of an angry or disgruntled former employee who lashes out at the boss who fired him. But his venomous attack seemed shrill and unbecoming of his stature. He branded Trump a liar and claimed the president “defamed” him when Trump described the FBI as “poorly led and in disarray” under Comey’s leadership.
As a lawyer, Comey well knows that the president was expressing an opinion which is protected speech under the First Amendment. Hence, it is not defamation at all. Moreover, truth is a complete defense. Given Comey’s mishandling of the Hillary Clinton email case, in which he contorted the law and usurped the authority of the Attorney General, the president’s description may be the truth.
And so, the much anticipated Senate Intelligence Committee hearing did not provide what President Trump’s antagonists yearned for – evidence of guilt.
The only guilt rests with the president’s critics, especially many in the media, who have leveled wild and baseless assertions that he committed a crime during his now infamous conversation with the fired FBI Director on February 14th.
Through ignorance and malevolence, they have laid bare their contempt for facts and the law in pursuit of a political mugging. It’s a shame that is not a crime.
Jails would be overcrowded with politicians and journalists.