Legal Experts: Trump’s Flynn Advocacy Not Obstruction of Justice
Lawyers across ideological spectrum agree Comey memo 'icky,' but not criminal
A bombshell report from The New York Times on Tuesday has raised the volume of Democrats hurling obstruction of justice allegations at President Donald Trump, but experts said Wednesday the president’s conduct likely does not meet that legal standard.
The Times quoted from a memo reportedly written by fired FBI Director James Comey detailing a one-on-one conversation in the Oval Office in February in which the president said he hoped the director could see his “way clear to letting this go, to letting Flynn go.”
“On the basis of what little we know, there was no obstruction of justice. There is a line between what is inappropriate — the technical term, I think, is ‘icky’ — and criminal behavior.”
That is a reference to former National Security Adviser Michael Flynn, who is reportedly under criminal investigation for matters related to Russia.
Andrew McCarthy, a former federal prosecutor who once wrote a book making the case for impeachment against then-President Barack Obama, told LifeZette that the Comey memo is not proof of obstruction.
“On the basis of what little we know, there was no obstruction of justice,” he said. “There is a line between what is inappropriate — the technical term, I think, is ‘icky’ — and criminal behavior.”
The legal standard for obstruction of justice is that a defendant acted “corruptly” to influence or attempt to influence an investigation. The best indication that did not occur, McCarthy said, is that Comey did not take more concrete action. If he believed Trump’s statements constituted obstruction of justice, he could have reported it to the deputy attorney general and resigned.
"If he thought he was being obstructed, he's not a wallflower," McCarthy said. "We would have heard about it."
House Speaker Paul Ryan (R-Wis.) raised the same issue during a Capitol Hill news conference on Wednesday.
"I'm sure we're going to want to hear from Mr. Comey about why, if this happened as he allegedly described, why didn't he take action at the time?" he said. "So there are a lot of unanswered questions."
McCarthy said Trump's reported comments are not substantially different from those that Obama made in public last year that he believed former Secretary of State Hillary Clinton, then under investigation for mishandling classified information, did nothing wrong and would be cleared.
The White House disputed the characterization of the conversation between Trump and Comey. McCarthy said it would be helpful to view the entire document and not just excerpts read to The Times by an unnamed associate of Comey.
"Context is very important in an obstruction of justice case," he said. "There's nothing more important."
For instance, McCarthy said, a lawyer might tell his client to tell the truth in his testimony. A mobster might utter the exact same words while holding a baseball bat at the home of the witness. Even though the words are the same, McCarthy said, the context dramatically alters the meaning.
Ryan on Wednesday supported efforts by the House Oversight Committee to obtain copies of Comey's memos and investigate the conversation. But he urged members of Congress not to rush to judgment.
"We need the facts. It is obvious there are some people out there who want to harm the president," he said. "But we have an obligation to carry out our oversight regardless of which party is in the White House. And that means before rushing to judgment, we get all the pertinent information."
Former Rep. David McIntosh (R-Ind.), co-founder of the Federalist Society, argued Wednesday that Trump acted appropriately in offering guidance to Comey.
"It is important for us to step back and remember that, under the Constitution, the president has the authority and power to enforce the laws. There's nothing in the Constitution about an FBI director," he said during a Federalist Society conference. "The FBI director reports to the president, and it is the president's decision to delegate authority on investigations. In delegating that authority, presidents have wisely chosen to insulate the FBI from political interference. But the president still has the power and authority to direct the FBI how to do their job."
Paul Callan, a CNN legal analyst, said on the network Wednesday morning that the known facts make a thin case for impeachment. He compared it to the impeachment charges that the House of Representatives was preparing when President Richard Nixon resigned.
Those articles of impeachment included allegations that Nixon acted to "impede, and obstruct the investigation" of several crimes. They included breaking into the headquarters of the Democratic National Committee, using the IRS to harass citizens for political purposes, and defying congressional subpoenas.
"There were probably 20 things that he did that were alleged," Callan said. "Here, we're talking right now about one conversation with Comey in the Oval Office. I don't see the comparison. I don't think there's enough for a Republican Congress to vote articles of impeachment on a Republican president on this record."
Jonathan Turley, a liberal George Washington University professor who testified during impeachment proceedings against then-President Bill Clinton, argued Wednesday in an op-ed in The Hill that the Comey memo is "awfully thin soup" for the basis of impeachment.
"But this memo is neither the Pentagon Papers nor the Watergate tapes," he wrote. "Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct."
Turley wrote that Trump's actions on Feb. 14 were "wildly inappropriate" but noted that there is no indication that a grand jury even had been convened to investigate Flynn at the time.
"Encouraging leniency or advocating for an associate is improper but not necessarily seeking an unlawful benefit for him," he wrote.