Some Democrats seized on President Donald Trump’s reported contacts with former FBI Director James Comey as evidence of a conflict of interest, obstruction of justice — maybe even an impeachable offense.
Sen. Richard Blumenthal (D-Conn.), reacting to Trump’s firing of Comey, told CNN’s Anderson Cooper on Wednesday that it could lead to Trump’s removal.
“There’s nothing wrong with having a dinner … There’s no obstruction of justice. There’s nothing untoward … This is more Trump Derangement Syndrome.”
“It may well produce impeachment proceedings, although we’re very far from that possibility,” he said.
And that was before NBC News aired excerpts of anchor Lester Holt’s interview with Trump in which the president said Comey told him during a dinner — and in two separate phone calls — that he was not a target of the agency’s investigation into possible coordination between his campaign and Russian agents during the 2016 election.
Laura Coates, a CNN legal analyst, said Thursday that obstruction of justice has a high legal burden.
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“But it’s always available in an impeachment setting, where the law has been written far more vaguely to try to be a backstop for criminal prosecution failures,” she said. “Remember, it was the formation for two impeachment articles for [Richard] Nixon and [Bill] Clinton for impeachment proceedings.”
Legal experts, however, said Trump did nothing illegal.
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“There’s nothing wrong with having a dinner,” said Joseph diGenova, who was U.S. attorney for the District of Columbia under Ronald Reagan. “There’s no obstruction of justice. There’s nothing untoward. The president is the chief executive officer in the United States. He can ask anything he wants … This is more Trump Derangement Syndrome.”
Ken Boehm, who was a state prosecutor in Pennsylvania in the 1970s and now serves as chairman of the board of directors of the National Legal and Policy Center, said obstruction of justice usually refers to intimidating witnesses or destroying evidence. He said it would not apply to someone asking a law enforcement officer about an investigation unless, perhaps, an overt threat accompanied it.
“Obstruction of justice is a pretty high hurdle,” he said. “Any citizen is welcome to ask any law enforcement person — federal, state, local — ‘Am I the subject of an investigation?’ … Usually, it’s the citizen’s lawyer who asks.”
Boehm said it was up to Comey to determine whether he could answer.
“There is a lot of loose commentary out there by people who just don’t know what the law or the etiquette is,” he said.
Boehm said there is even less to support the notion that it was a conflict of interest. He said former Attorney General Loretta Lynch’s impromptu meeting with former President Bill Clinton on an airport tarmac last year — during the investigation of his wife’s handling of classified information — was more troubling.
Boehm said it would be hard to find a precedent for prosecuting under facts similar to the Trump-Comey conversations.
“Really? Name one case in the history of the United States where that got prosecuted,” he said.
Josh Blackman, a professor at South Texas College of Law, Houston, noted that there is some uncertainty about whether Trump’s account is accurate. Assuming it is, Blackman said, it is not a clear-cut case. One the one hand, he said, the FBI typically does not tell potential targets whether they are under investigation. On the other hand, the president is the director’s boss, he added.
“It’s a really tricky question about whether this is appropriate,” he said.
Blackman pointed to a much-scrutinized statement by then-President Barack Obama in April last year that he knew Clinton “would never intentionally put America in any kind of jeopardy.” Critics saw it as evidence that Obama was trying to influence the investigation.
“There’s not really a clear line on that,” Blcakman said.
Blackman said that if Trump did, indeed, ask Comey on three separate occasions about the investigation, the director could have refused to answer. And he could have gone public if he felt that Trump was acting in an improper way, Blackman said.
“He’s shown no hesitation to hold press conferences to make a fuss,” he said.
Of course, even if Trump’s conduct would not support a criminal charge, it is obviously true that it could form the basis of a hypothetical impeachment charge. “High crimes and misdemeanors” ultimately are whatever Congress determines they are.
But Boehm said impeachment, short of a major revelation, is extremely unlikely in a Republican-controlled House of Representatives and Senate.
“Speak about reality here for a half-second, since that’s where we all live,” he said. “That’s lunacy … There’s been a lot of wackiness, and has been since the election, by these people.”