It is not prosecutable obstruction, but it can be abused.
According to a portion of a memorandum the New York Times has reported on but not seen, President Trump told then–FBI director James Comey, “I hope you can see your way clear to letting this go, to letting Flynn go” — an apparent reference to the FBI’s criminal investigation of retired general Michael Flynn, Trump’s former national-security adviser. The president is said to have made this remark in a private meeting with Comey at the White House on February 14 — the day after Flynn resigned under pressure.
The Times report has the predominantly anti-Trump media in whirling-dervish mode, leaping to the conclusion that the president is guilty of obstructing justice. As I’ve countered, this is not just premature, it is wrong.
The president has denied appealing to Comey on Flynn’s behalf. Trump denials have a way of, um, evolving, but even if we assume that this snippet of conversation happened just as the Times alleges, there would be no prosecutable obstruction case. On its face, the statement is an expression of hope; it does not amount to a corrupt undermining of the truth-seeking function of an FBI investigation. Comey, a highly experienced former prosecutor and investigator, knows the law of obstruction cold. He clearly did not perceive himself to have been impeded — he neither resigned nor reported a crime up or down his chain of command. In Senate testimony on May 3 — i.e., nearly three months after the St. Valentine’s Day chat with Trump — Comey averred that never in his experience had the FBI been instructed to drop an investigation for political reasons. Trump, ever his own worst enemy, has stirred the pot with the timing and conflicting explanations of his May 9 firing of Comey, but a president does not need a reason to fire an FBI director. Trump’s rationale may have had both worthy and unworthy elements, but the decision was his to make, and even ardent Russia-conspiracy theorists are apt to doubt that he did it over Flynn. More to the point, neither Trump’s alleged remark nor Comey’s firing has had any apparent effect on the Flynn investigation, which has continued (a grand jury in Virginia has issued subpoenas).
So, what we currently know falls woefully short of a prosecutable obstruction offense, even if we stipulate that Trump created a situation that was awkward and inappropriate.
But should we so stipulate?
I ask because I have been highlighting the fact that, on its face, Trump’s statement was not an order that the Flynn investigation be closed. Yet, to assert this fact is to raise an important question: If Trump had ordered Comey to close the investigation, would that have amounted to obstruction of justice?
To hear Democrats and other Trump detractors tell it, there are only two possible answers: “Of course” and “How could you ask such a stupid question?” In reality, it is not so cut and dried.
In our constitutional system, police powers are executive powers. They may not be wielded by any other branch of the federal government. This is why, to take a topical example, Robert Mueller, the newly appointed “special counsel” who has taken over the so-called Russia investigation (which includes the Flynn probe), is not an “independent counsel” — he answers to the president and reports to Justice Department leadership.
‘The independence of law enforcement’ goes only so far. The president is the chief executive of the federal government, and the Constitution vests all executive power in him.
It is a commonplace to laud “the independence of law enforcement,” but the truth is that independence goes only so far. The president is the chief executive of the federal government, and the Constitution vests all executive power in him. Everyone else who works in the executive branch is a subordinate, delegated to exercise the president’s power at the president’s pleasure. (The sole exception is the vice president — but let’s not get sidetracked.) The president is the superior of the attorney general, who in turn is the superior of the FBI director — the FBI is a component of the Justice Department.
In sum, the FBI director works for and answers to the president. Yes, we want our law enforcement to be as independent as practicable. To have the rule of law, on which a free society depends, the public must be convinced that the justice system’s results are legitimate. Our law-enforcement officials therefore strive for independence in order to demonstrate that their decisions are fair and just, not driven by political considerations. But this aspiration is not an absolute. The FBI director is not an independent actor. The president is in charge, and must, for example, set enforcement priorities that the FBI is obliged to follow. A prudent president will not interfere in law-enforcement decisions. But that is because doing so would be counterproductive and politically damaging. It would not be unlawful.
As some have observed in the ongoing debate, the Constitution creates no Federal Bureau of Investigation, much less an FBI director. Indeed, there was not even a Department of Justice for nearly the first century of constitutional governance, and the FBI did not exist until 1935 (succeeding the Justice Department’s Bureau of Investigation, which had been created in 1908). In theory, the president could carry out federal law-enforcement functions without an FBI director.
It thus cannot be doubted that a president has constitutional authority to order the FBI to drop a criminal investigation. If a president has a constitutional power, Congress cannot remove it by statute — a law that purported to make the FBI director independent of presidential supervision would be invalid. Well, Congress may not do by indirection what it is forbidden to do directly: It can (and has) enacted obstruction statutes, but they may not be construed to forbid the president to instruct the FBI director to close an investigation.
Does that mean the Constitution insulates the president from an obstruction-of -justice charge based on interference with the FBI’s operations? Absolutely not. Some Trump partisans go too far on this score.
It is not only theoretically possible for a president to be guilty of obstructing investigations; President Richard M. Nixon would in fact have been removed from office over it had he not resigned. The first article of impeachment approved by the House Judiciary Committee alleged that Nixon had “prevented, obstructed, and impeded the administration of justice,” by (among other things) “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States [and] the Federal Bureau of investigation.”
How could a president be said to ‘obstruct’ something he has the constitutional power to shut down entirely? The answer lies in the concept of corruption.
How could a president be said to “obstruct” something he has the constitutional power to shut down entirely? The answer lies in the concept of corruption.
To establish the offense of obstructing an FBI investigation, federal law requires proof beyond a reasonable doubt that the accused acted “corruptly.” Essentially, this means acting with an understanding that what one is doing is illegal, and with a purpose to subvert the due and proper administration of law.
Two things are worth noting here.
First, it would be much harder to establish an obstruction offense against a president who orders that an investigation be dropped than against one who ostensibly permits an investigation to proceed but insidiously manipulates it.
On the matter of ordering an investigation to be dropped entirely, remember: Because of separation-of-powers principles, prosecutorial discretion is a basic feature of our criminal-justice system. Congress and the courts may not force the executive branch to pursue a case, no matter how serious the crime or compelling the evidence.
There are often good reasons for not pursuing a viable criminal case. Every day, throughout the country, the FBI forgoes various investigations and U.S. attorneys decline prosecutions. Sometimes bringing a criminal case would harm foreign relations or intelligence operations. Prosecuting a business that has committed a serious financial fraud may put hundreds of innocent people out of work. Sometimes a politically fraught prosecution might divide the country and feed a perception of politicized law enforcement (which, one can safely assume, is why Donald Trump soured on the hot campaign idea of prosecuting Hillary Clinton once he became President Trump). Sometimes, a person — particularly one with a record of patriotic service to the country — has been laid so low by scandal, professionally and personally, that prosecution would be overkill. (This was the case with Nixon. And, I suspect, it is President Trump’s inclination when it comes to General Flynn — note that the alleged Trump–Comey conversation about Flynn is said to have happened the day after Flynn’s ignominious resignation.)
Clearly, the fact that one may disagree, even vigorously, with an exercise of prosecutorial discretion does not make that exercise corrupt. To prove corruption, the abdication would have to be egregious and patent, because a president must have at least as much discretion to decline investigation and prosecution as the agents and prosecutors who are his subordinates. Those subordinates exercise extraordinarily broad discretion, which, as courts have repeatedly acknowledged, is judicially unreviewable.
By contrast, let’s say a president were to pressure the FBI or Justice Department to rig an investigation of a crony — i.e., to make it appear as if agents and prosecutors were conducting a thorough probe but with the understanding that no charges ultimately would be filed and that it would be presented as if the crony had been exonerated. Because rigging involves many steps, it creates a pattern of corruption that might be easier to detect than the corruption involved in completely shutting down an investigation of the crony under the guise of prosecutorial discretion. Again, though, the kinds of actions that could be taken to rig an investigation (e.g., cutting off pertinent areas of inquiry, failing to issue subpoenas or seize patently relevant evidence, inexplicable immunity grants, etc.) are actions that agents and prosecutors have broad discretion to take. Decisions that appear corrupt (and probably are corrupt) could be extremely difficult to establish as corrupt beyond a reasonable doubt for purposes of courtroom prosecution. There would be a powerful argument — even if we find it to be an infuriating argument — that second-guessing these decisions would be an impermissible judicial intrusion on prosecutorial discretion.
Impeachment is a political remedy, not a legal one.
So is that it, then? Is the president beyond accountability for obstructive conduct?
No, which brings us to the second point — and brings us back to Richard Nixon.
Because of the significant executive-discretion defenses that would be available, I have serious doubts that a president could be prosecuted in the criminal-justice system for obstructing an FBI investigation. But there is no doubt that a president could be impeached and removed for obstruction offenses.
As I argued in Faithless Execution, impeachment is the Constitution’s remedy for abuses of power. The fact that a president has awesome discretionary authorities, and that the breadth of his discretion may make courtroom prosecution impractical if not impossible, does not mean a president cannot be held to account. Compare: A president’s pardon power is absolute in the sense that no pardon, no matter how reprehensible, can be undone by a court or by legislation. But a president could be impeached for abusing the pardon power (e.g., if the president sold pardons, or inexplicably commuted the sentences of slews of dangerous criminals). Another example: The president is commander-in-chief of the armed forces and thus supreme in directing combat operations — the other branches may not intrude. Yet were a president to order an attack on a friendly country, or order irresponsible actions that were of little or no strategic military value and resulted in massive loss of life, he could be impeached over it. That is: To have awesome power is not to have license to abuse that power.
This is true of shutting down investigations. Impeachable offenses (the Constitution’s term of art is “high crimes and misdemeanors”) need not be penal offenses indictable in a court of law. The issue in an impeachment proceeding is not whether a president (or other government official) is guilty beyond a reasonable doubt in the legal sense; it is whether the president has abused his power or otherwise violated his public trust. Impeachment is a political remedy, not a legal one.
The defenses that would be available to a president in a criminal prosecution for obstruction would not be nearly as effective in an impeachment. In the latter, the president would not get off the hook by claiming that he had the broad discretion to take this or that questionable action. There would be no dispute about whether the president had discretion; the question would be whether this discretion was abused in a manner so indefensible that the president was not fit to wield such power.
Impeachment is hard, as it should be. Because it is a last-resort measure and so tumultuous for the public, it would be very difficult, even in a meritorious case, to get the simple House majority necessary to vote articles of impeachment. And the two-thirds’ Senate supermajority required for conviction means that only the most heinous abuses of power — the rare kinds that are found intolerable across party and ideological lines — could result in a president’s removal from power.
We do not know all the facts, but reasonable FBI agents and federal prosecutors, considering General Flynn’s humiliation, diminished prospects, and career of heroic service to the United States, might well decide that the public interest would not be served by prosecuting him for what do not exactly appear to be the crimes of the century — if they be crimes at all. Reasonable agents and prosecutors might also decide that Flynn’s misconduct is serious enough to warrant further investigation and a potential indictment.
If reasonable minds can differ, it could not be corrupt for a president to order that a criminal investigation be dropped. And, of course, President Trump gave no such order. We are not anywhere near presidential conduct that is indictable, let alone impeachable.
But Mr. President, next time you feel that further investigation would be overkill, please don’t call the FBI. Call the pardon office. You’ll get some political heat, but there will be fewer memos.
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