“If it was a polite request saying, ‘Oh, you know, he’s a good guy, Flynn, I wish you’d back off this thing,’ that’s not an obstruction of justice. If it was a command, it would raise stronger problems.”
—Retired Harvard law professor , Constitutional scholar, lawyer, liberal and CNN commentator Alan Dershowitz, trying to explain to MSNBC what “obstruction of justice” means.
He needn’t have bothered: the news media/Democratic Party/ “resistance'” collective has already labelled James Comey’s so far only rumored “memo” recounting that the President asked the then-FBI Director, in a private meeting in February, to close the FBI investigation of Trump’s former national security adviser, Michael Flynn, proof of criminal motives and acts.
The New York Times learned of the memo from two people who claim they had read it. One of them read part of the memo to a Times journalist. According to these unnamed sources’ description of the memo, Trump told Comey, “I hope you can let this go” in a meeting that took place the day after Flynn was forced to resign.
“I hope you can let this go” would be consistent with what Dershowitz, no Trump supporter but apparently yet to be infected with the integrity- and logic-destoying anti-Trump virus, accurately described as “not an obstruction of justice.”
The Times, however, a card-carrying member of the “overturn the election” cabal—we know this because it stated last August that defeating Trump justified tossing journalism ethics into the trash, and because since the election, its pages have from the book reviews to the op-ed pages have been filled anti-Trump propaganda—called Trump’s reported request “the clearest evidence that the president has tried to directly influence the Justice Department and FBI investigation” into links between Trump associates and Russia. This must mean that there is no evidence, at all, since saying “I hope you can let this go” is barely influence at all.
The news of the alleged memo was breathlessly hailed by the “Can we impeach him now?” fanatics, including some readers of this blog who should know better and once did, as a “bombshell.” As Alan Dershowitz dispassionately points out, and as I have in the comment threads, it’s no bombshell. This is not remarkable observation; a New York Times contributor was even allowed to agree with Dershowitz. (The Times can’t completely commit to the lynch mob, for then its efforts to aid and abet would be less valuable. It’s quite a tightrope these people are walking….). Constitutional law prof Elizabeth Price Foley wrote,
But as distasteful as the president’s statements may be, they do not constitute an obstruction of justice. Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime.
Section 1510 of Title 18 of the United States Code addresses obstruction of criminal investigations. It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators. Even assuming Mr. Comey’s memo is accurate, there is no indication that President Trump willfully attempted to bribe the F.B.I. director. As the Supreme Court stated in United States v. Sun-Diamond Growers of California, “for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”
There is no evidence of a quid pro quo. Even assuming, for the sake of argument, that Mr. Trump intended an implied offer of continued employment in exchange for Mr. Comey’s dismissal of the Flynn investigation, it would be implausible for Mr. Comey to construe it as such. Mr. Comey was aware that he was an at-will employee who could be fired by the president at any time, for any reason. Indeed, when President Obama endorsed Hillary Clinton for president in June 2016 — during the height of the F.B.I.’s investigation into Secretary Clinton’s private email server — it would have been similarly implausible for Mr. Comey to construe Mr. Obama’s pro-Clinton remarks as an implicit offer of continued employment, in exchange for dropping the Clinton investigation. Even though Mr. Comey dropped the investigation one month later, he presumably knew that although it would please both Mr. Obama and Mrs. Clinton, it would not insulate him from being fired.
But even if one adopted an unprecedentedly broad conception of bribery, Mr. Trump’s purported statement still would not violate Section 1510. The statute is designed to preserve the free flow of information, prohibiting only acts that obstruct investigators’ access to information. Bribery of a potential witness, for example, is behavior prohibited by Section 1510. But telling the F.B.I. director that someone is a “good guy” and expressing the hope that an investigation will cease does not obstruct the free flow of information.
Another, broader federal obstruction statute is Section 1505 of Title 18, but even this statute does not fit. Specifically, Section 1505 declares that anyone who “corruptly” endeavors to obstruct the proper administration of law “under which any pending proceeding is being had before any department or agency of the United States” is guilty of a felony. Even putting aside the difficulty of proving, beyond a reasonable doubt, that President Trump’s brief and generalized words evinced the necessary “corrupt” mind-set, Section 1510 applies only to a “pending proceeding.”
In the almost 120 years since Section 1505 and its predecessor have been on the books, no court appears to have ever held that an ongoing F.B.I. investigation qualifies as a “pending proceeding” within the meaning of the statute. Instead, Section 1505 applies to court or court-like proceedings to enforce federal law. In addition to prosecutions (where charges have been filed with a court), such proceedings include actions of enforcement by federal agencies such as the Internal Revenue Service, Securities and Exchange Commission or National Labor Relations Board, in which the agency has broad powers not merely to investigate statutory violations, but also to enforce them via subpoena or other administrative proceedings….Because the F.B.I. lacks enforcement power, its investigations are not a “pending proceeding,” and courts that have considered the question have so concluded. The legislative history, moreover, confirms that Congress did not intend Section 1505 to reach F.B.I. investigations. The House Judiciary Committee report declared that “attempts to obstruct a criminal investigation or inquiry before a proceeding has been initiated are not within the scope of the proscription” of Section 1505 (italics added for emphasis).
No court has interpreted Section 1505’s “pending proceeding” language to include statements such as those purportedly made by President Trump for a reason. Such generic “he’s-a-good-guy-can’t-you-drop-the-charges?” statements are routinely made to investigators and prosecutors. Defending one’s self, client or friend is a natural instinct, and beseeching leniency is not tantamount to obstruction. Holding otherwise would endorse a breathtaking expansion of obstruction, and be utterly inconsistent with First Amendment freedoms.
Hey, but why allow little matters like what the law actually says and means to interfere with fear-mongering, exaggeration, hate and hysteria in the service of an insurrection by public outcry and the triumph of the news media and Virtuous Left? The idea, it is clear, is to pile up as many non-impeachable incidents as possible, and by misrepresenting them, seek to remove a duly elected President by sheer quantity, ignorance and emotion.
Foley deals with this too:
“Principled objections to Mr. Trump’s policies and leadership style should not blind opponents to the dangers of repeated, knee-jerk calls for criminal prosecution of the president of the United States. Let the evidence unfold, and reserve serious charges if and when the evidence warrants it. Crying wolf undermines the credibility of the opposition, further divides an already deeply divided country and breeds cynicism about American institutions that is as dangerous to our republic, if not more, than outside meddling.”
Funny, all of that sounds like something I might have written, and more than once.
Pointer: ABA Journal