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The most immediate legal question is whether the President's conduct amounts to obstruction of justice, either on its own or in combination with other actions. Lawfare writers discussed the question of obstruction of justice in some detail following the firing of Comey last week.
The picture that Mr. Trump has managed to create so far consists of the following:
- The admission that he sought repeated assurances about his legal exposure in an ongoing criminal investigation
- The pursuit of those reassurances at a time when he was quite actively holding open the possibility that Mr. Comey might not hold onto his job. (Apparently one of these conversations took place over dinner—as it was being served, was the President making it clear that Mr. Comey might have “to sing for his supper”?)
- The admission that in firing Mr. Comey, he was moved decisively by his frustration over the FBI's handling of the Russia probe.
- The President's repeated very public statements, heard by all, including those charged with investigating the matter, that he views the Russia probe as having no merit. Responsible for the faithful execution of the laws and the integrity of the system of justice, Mr. Trump has chosen to actively dispute the basis for an ongoing FBI investigation that affects his interests.
- The repeated adjustments to the story the White House originally told about the circumstances surrounding the decision to dismiss Mr. Comey. As noted in the earlier posting, it is not advantageous to somebody under suspicion to be altering his story—or, in this case, changing it in every material detail.
Now add to all of this already suggestive material the allegation that President Trump actually went a step further and asked the FBI Director to drop a case he didn’t like.
A submission to an investigating officer as to how a case should be handled is, to be sure, not always an obstruction: think of a defense attorney asking a prosecutor, “Come on, can’t you just let my client off easy this time?” What makes this particular case troubling is that Trump was acting not as just any person, but as the President of the United States, who is also the chief legal officer of the executive branch. Particularly coupled with Comey’s dismissal shortly after the request was made and the fact that the broader investigation of which Flynn was a part was one in which Trump’s own interests were at issue, the argument that we see here a pattern of obstruction begins to looks plausible.
But there’s a big catch in all of this that people should not overlook: This case is not going to be prosecuted in federal court like a normal obstruction case—at least not in the first instance. Whether the President is immune from indictment during his time in office is an open question; the longstanding position of the Executive Branch is that the sitting President cannot be prosecuted. At a minimum, in this view, he has to be impeached by the House of Representatives and removed from office by the Senate first. Even if you don’t accept this position, the Justice Department under Attorney General Sessions is not going to indict the sitting president. So the immediate question is not whether this pattern of behavior—or any individual component of it—could support a prosecution and criminal conviction for obstruction of justice. It’s whether it would support an impeachment in the House and a removal vote in the Senate.
Historically, obstruction of justice articles of impeachment do elaborate a pattern of conduct.
The critical point is that impeachment for obstruction of justice is ultimately not just a legal question; it’s also a political question, albeit a political question highly inflected by the law and often discussed in the language of the law. The boundaries of the impeachable offense are not coextensive with the boundaries of the criminal law.
So the real question boils down to this: Does the pattern of conduct that is emerging, in the view of a majority of the House of Representatives and a two-thirds majority of the Senate, constitute an obstruction of justice of a type that is grounds for impeachment and removal?