The Corner

Law & the Courts

The Donald Trump Obstruction Inquiry Isn’t Mainly About the Comey Memo

Writing in The Hill, law professor Jonathan Turley is unimpressed with the argument that the (alleged) Comey memo may provide evidence that Donald Trump committed an impeachable offense:

However, if this is food for obstruction of justice, it is still an awfully thin soup. Some commentators seem to be alleging criminal conduct in office or calling for impeachment before Trump completed the words of his inaugural oath of office. Not surprising, within minutes of the New York Times report, the response was a chorus of breathless “gotcha” announcements. But this memo is neither the Pentagon Papers nor the Watergate tapes. Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.

Our own Andy McCarthy has written a piece noting that if the (alleged) contents of this memo are considered grounds for obstruction, then he can also point to Barack Obama’s public statements opening on the merits of the FBI’s investigation of Hillary Clinton. Andy writes:

On its face, [Trump’s] statement does not amount to obstruction of justice. Trump could be said to be putting pressure on his subordinate, just as Obama was putting pressure on his subordinates (Comey included) last April. But assuming the Times is right about the memo, Trump did not order Comey to drop the case. In fact, Trump’s statement is consistent with encouraging Comey to use his own judgment, with the understanding that Trump hoped Comey would come out favorably to Flynn.

Viewing the memo in isolation, I agree with Andy and Jonathan. A request to drop the Flynn investigation is improper, but it’s light years from actual obstruction of justice or an impeachable offense. But the obstruction inquiry isn’t just or even mainly about the memo. As I wrote yesterday, it’s about an entire chain of events that is far more problematic together than any one segment is in isolation. In other words, it’s one thing to ask Comey to stop investigating Flynn. It’s another thing entirely to fire him — a few weeks later — after he fails to comply with Trump’s request. It’s even worse to then mislead the country about the reason for the termination.

If there’s an intelligent investigation, it will focus on linkage. If meaningful evidence exists that Trump fired Comey either entirely or in part because Comey refused a “suggestion” that he drop the investigation, then Trump’s presidency is in real danger (especially if his approval rating plunges.) If the evidence indicates that the events are entirely unrelated, or the evidence is too murky to draw any reasonable conclusion, he’ll live to outrage another day.