Law & the Courts

‘Pressure’ Is Not Obstruction

(Reuters photo: Joshua Roberts)
Comey was not ‘obstructed.’

The thing to remember is that there’s a big difference between perceiving “pressure” and believing that you have witnessed the obstruction of an FBI investigation, a federal felony.

Take this to the bank: Over the next week, before the much-anticipated Senate testimony of former FBI director James Comey, the media-Democratic complex is going to spare no effort to convince you that the words “pressure” and “obstruction” are synonyms – you know, like the words “collusion” and “crime.”

They’re not.

It may very well be that former FBI director James Comey is prepared to testify, consistent with a leaked report of a memorandum written to himself, that he felt President Trump pressured him to drop the FBI’s investigation of Michael Flynn, Trump’s first national-security adviser.

Even if this were true, it would not mean Comey believed the president had committed felony obstruction. No one grasps this better than the former FBI director himself.

On that score, I’ve been surprised, since the story of Comey’s memo-to-self broke, to have been asked about the purported “contradiction” between the memo and Senate testimony the then-director gave in early May.

According to the memo (which has not been made public and from which only a selectively mined snippet has been reported), on February 14, President Trump told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go.” Based on this, CNN, relying on “a source close to the issue” (hmmm), claims that Comey is prepared to testify that he felt “pressured” to pull the plug on the investigation.

Compare this with his May 3 testimony. Answering questions put by Senator Mazie Hirono (D., Hawaii), the then-director averred that he had never been directed by superiors to halt an FBI investigation.

Contrasting the two statements, Comey’s more fervid detractors accuse him of perjury. Should Comey testify next week that Trump pressured him in February, they reckon that either a) this claim or b) his May testimony that he’d never been “told to stop something for a political reason” would have to be false testimony.

It is a specious contention. First, Senator Hirono did not ask Comey about any direction given to him by the president. Her questions were about orders from the FBI director’s Justice Department superiors. (The FBI is part of DOJ, and the director is subordinate to the attorney general.)

More important, let’s assume that a question about whether he’d ever gotten a shut-down order from DOJ obliged Comey to include in his response any shut-down order he’d ever received from a president. (This assumption runs counter to perjury law, but let’s pretend.) The bottom line would still be that an order simply is not the same thing as pressure. Asserting that you have never been ordered to do something does not imply a representation that you have never been pressured to do that something.

No one in America knows the law of obstruction better than Comey, who has spent much of the last 30 years as a high-ranking federal prosecutor and the federal government’s top cop. He is well aware that pressure is not obstruction. In this instance, moreover, Trump’s exertion of pressure was relatively mild: He did not deny Comey the freedom to exercise his own judgment; the president expressed hope that Comey’s judgment would be exercised in Flynn’s favor. Any of us who has ever had an overbearing boss is familiar with this kind of prodding. It can be unpleasant, even anxiety-inducing. But Comey is a big boy, he has a history of not being intimidated by presidents, and what we’re talking about here is not exactly the rack.

This is no doubt why Comey did not resign, and did not report to the Justice Department, his FBI staff, or Congress, that he had witnessed – indeed, been the victim in a sense – of an obstruction of an FBI investigation.

Let’s stipulate that Comey has an outsized conception of what an FBI director’s degree of independence from his political superiors should be. He may therefore be convinced that Trump’s browbeating on Flynn’s behalf was terribly inappropriate. That still doesn’t make it obstruction . . . not even close.

Now, let’s talk about that proper degree of independence.

Senator Hirono – again, asking about orders from the Justice Department, not the president – asked Comey whether his superiors had the power to “halt [an] FBI investigation.” He replied, “In theory, yes.” He used the word “theory” advisedly, drawing a contrast with how things usually work in practice. And to be sure, the Justice Department rarely orders the FBI to shut down an investigation; if DOJ does not like a case, it usually advises the FBI not to waste more resources on it because it is unlikely to approve charges.

Pace Comey, however, what he was referring to is not merely a “theory.” It is the reality of the American constitutional framework.

Progressives love the idea of this or that executive power being delegated to subject-matter experts – altruists who will act only in the public interest, and who therefore should not be interfered with by their political superiors. That is not the system we have.

Law enforcement is largely shielded from politics, but that is not because there are laws against political interference. Instead, presidents stay their hands because it would be politically damaging to intrude too deeply into policing and prosecution. The public wants those functions controlled by objective law, not self-interested politics. But even this is not an absolute: Implicit in the pardon power, for example, is the understanding that tempering harsh law-enforcement with pragmatic politics is sometimes desirable.

Our federal system, in any event, is based on political accountability, not expertise. We hope that law-enforcement officials will be good at their jobs, but we demand that they perform well by making their political superiors accountable to the public.

The FBI director is not an independent actor; the director is the subordinate of the president. No one appears to be alleging that Trump gave Comey a direct order to drop the Flynn investigation. Even if he had done so, however, it would have been a legitimate exercise of power – regardless of whether the FBI director found it a disagreeable exercise.

No one in America knows the law of obstruction better than Comey.

FBI supervisors and U.S. attorneys close down investigations and potential prosecutions all the time, even in cases in which the suspect is plainly guilty. These are exercises of discretion, not exemplars of obstruction. Plainly, the chief executive cannot have less discretion than these inferior executive officers do.

As we’ve observed, the key concept in obstruction is corruption. To constitute an obstruction offense, the administration of law has to be impeded with a corrupt state of mind. Your disagreement with an exercise of discretion does not turn it into corruption. It may be a lapse in judgment, even a serious lapse; but that doesn’t make it a crime.

Here, to the contrary, Trump did not even exercise discretion. He left the matter to Comey’s discretion, with the hope, but not the insistence, that the discretion be exercised in Flynn’s favor.

Did Director Comey fell pressure? Maybe . . . but not as much pressure as Flynn is feeling. Did I mention that he remains, and has all along remained, the subject of an FBI investigation?

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