James Comey has no choice.
The former FBI Director must say President Trump did not attempt to obstruct justice. To testify otherwise will put Comey himself in serious legal jeopardy. He would, in effect, be confessing to a crime.
As I explained in a column three weeks ago, the law requires Comey to immediately inform the Department of Justice of any effort to obstruct justice by any person, even the President of the United States. Failure to do so could result in criminal charges under a statute known as “misprision of felony” (18 USC 4).
You can expect Comey to trash Trump like yesterday’s garbage when he testifies before Congress. He will disparage the man who fired him, but he cannot accuse him of obstruction without risking his own potential indictment.
Let’s consider the witness. Comey is the guy who managed to mangle the Hillary Clinton email scandal, contort the law beyond all recognition, and usurp the authority of the Attorney General in his “de facto” dismissal of the case. In the process, he shredded the credibility of the FBI. His ignorance of the law is so conspicuous, he might have a tough time landing a job at a legal aid clinic.
Nonetheless, Democratic lawmakers who loathed Comey a mere seven months ago and suggested he should be unceremoniously removed, will now embrace him like he’s their “BFF”. But that’s politics.
Let’s examine the law.
Comey’s Legal Duty
The law imposes an affirmative duty on federal officials to report knowledge of a felony (here, obstruction) to the appropriate authorities. The language of the statute applies directly to Comey’s situation:
“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”
Normally, the statute is used only against those who have a special duty to report a crime, such as government officials like the FBI Director. Active concealment is an element of the crime. For example, suppressing an incriminating memorandum would be concealment because the memo would be evidence of an alleged crime. It is the equivalent of aiding and abetting a criminal act, acting as an accessory after the fact.
Did Comey alert his superiors at the DOJ or give them his memo? We do not know for certain. It is a question he will surely be asked when he testifies before the Senate Intelligence Committee.
But no evidence has been produced thus far to suggest he told anyone other than a few colleagues at the FBI with whom he shared his memorandum memorializing his conversation with President Trump at the White House on February 14th. The words of that memo were leaked to the New York Times only after Comey was fired from his position. Whoever leaked it violated the law.
Importantly, at a congressional hearing three weeks ago, Acting FBI Director Andrew McCabe, who served under Comey as his second-in-command, testified, “There has been no effort to impede our investigation to date.” Presumably, that would include the president.
All of which suggests that Comey will now be forced to testify that while he may have thought the president’s language was troubling or uncomfortable, it was too vague, ambiguous or elliptical to rise to the level of obstruction.
If that is Comey’s testimony, as it must be, then he committed no crime because he was under no legal duty to report the conversation to anyone.
In essence, his only way out is to clear President Trump of the dubious accusations he tried to obstruct justice.
According to the initial report by the Times, Trump said to his then-Director the following:
“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
The operative term in those sentences is the repeated use of the word, “hope”. Hoping or wishing for an outcome is not the same as directing or ordering someone to end an investigation and/or clear a suspect.
It is an aspirational expression --hoping events will turn out well for Michael Flynn who was fired as the president’s National Security Adviser. It’s like saying, “I hope it doesn’t rain tomorrow.” It may rain. Hoping it will not is nothing more than a desire or wish.
By contrast, if the president had said, “End the investigation and exonerate Flynn or you are fired”… that might, arguably, constitute obstruction. It is an edict or mandate to stop something.
Bear in mind that terminating the FBI Director is not, by itself, obstruction. As Comey himself admitted in a letter to his colleagues, the president has the constitutional authority to fire him for any reason or no reason at all.
In point of fact, the president has the constitutional right to tell anyone in the executive branch of government what to do and what not to do. Previous presidents have taken an activist role in directing the FBI to investigate certain matters and to refrain from investigating others. That is yet another legal wrinkle which few have considered, but constitutional scholars are well aware.
Obstruction of justice is a specific intent crime. It is an easy accusation to throw around, but exceedingly difficult to prove in a court of law. Courts have interpreted it quite narrowly.
Under 18 USC 1505 and subsequent sections, prosecutors must prove the president “corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law.”
The key word is “corruptly”. What does it mean? Another statute, 18 USC 1515(b), defines it as:
“Acting with an improper purpose, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”
The president’s actions do not come close to satisfying the requirements of acting “corruptly”. No false statements, no withholding or concealing, and no altering or destroying evidence have been alleged by anyone.
In 2005, the Supreme Court further explained “corruptly” this way: “wrongful, immoral, depraved or evil” (Arthur Andersen v. U.S.). Okay, not much help, but you get the picture. The president’s actions would have to be sufficiently pernicious as to offend human sensibilities.
Again, “hoping” that someone can “let it go” is hardly a wicked or malevolent act as the law requires.
President Trump’s specific intent when he uttered those words to Comey can only be known by the man who made the statement, not by the man who heard it. Yes, jurors are often asked to infer intent from the words that were spoken. And Comey will likely be asked to explain how he interpreted the words.
Which brings us full circle to Comey’s dilemma. How can he say he thought the president was attempting to obstruct justice without incriminating himself in the crime of misprision of felony? He cannot. Which is precisely why Comey will testify it was not obstruction.
The law has a curious way of presenting predicaments that demand the truth.