President Donald Trump meets with former Secretary of State Henry Kissinger in the Oval Office at the White House on May 10, 2017. (Getty)
The New York Times on Tuesday reported that President Donald Trump tried to pressure former FBI Director James Comey to drop the investigation into former national security advisor Michael Flynn’s ties to Russia.
If true, this is a major development, as Trump pressuring Comey to drop an ongoing FBI investigation may be considered obstruction of justice, an impeachable offense. 18 U.S. Code § 1503 states that anyone who “influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection,” with the punishment being a fine, up to 10 years in prison, or both.
In fact, obstruction of justice was the first charge in President Richard Nixon’s articles of impeachment. The articles state that President Nixon “using the powers of his high office, engaged personally and through his subordinates and agents in a course of conduct or plan designed to delay, impede and obstruct investigations of such unlawful entry; to cover up, conceal and protect those responsible and to conceal the existence and scope of other unlawful covert activities.”
The Nixon articles of impeachment also note that if the president was found to have been “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force and congressional committees,” this would be an impeachable offense.
On what became known as the “smoking gun” tape, President Richard Nixon was heard telling an aide to pressure the FBI to shut down its investigation into Watergate.
“…Call the FBI and say that we wish, for the country, don’t go any further into this case, period,” Nixon said on the tape.
Of course, Richard Nixon ended up resigning from office voluntarily before the impeachment process could get underway.
In response to the New York Times story, which has since been corroborated by several other news outlets, the White House has said that Donald Trump did not ask James Comey to shut down any investigation. They say that Trump simply expressed his view that Michael Flynn is a decent man who served his country well, and so their argument would be that Trump was not intending to obstruct justice at all; he was simply offering his opinion in a conversation with the FBI director.
“While the President has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the President has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn,” the White House said in a statement. “The President has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the President and Mr. Comey.”
A key factor in this story is the fact that former FBI director James Comey, according to The New York Times, took thorough notes about his conversations with Donald Trump. These notes will likely be subpoenaed as part of any future congressional investigations, as would any potential tapes that Donald Trump might have of his conversation with James Comey.
Republican Representative Jason Chaffetz of the House Oversight Committee said on Tuesday that he will use his subpoena power to obtain a copy of James Comey’s memos detailing the nature of his conversation with President Donald Trump. This should shed more light on the conversation and on whether it should be considered obstruction of justice; The New York Times was not actually given a copy of the full memo for its report.
.@GOPoversight is going to get the Comey memo, if it exists. I need to see it sooner rather than later. I have my subpoena pen ready.
Going forward, then, the question will be whether Donald Trump’s conversation with James Comey, and his statement to Comey that “I hope you can let this go,” meets the threshold of obstruction of justice.
That question is entirely up to the House of Representatives to decide, as it’s the House’s call whether an impeachment charge should be brought against a president. The Constitution states that an elected official can be impeached for treason, bribes, or “other high Crimes and Misdemeanors,” and it’s up to the House to determine what that third part means. They would also be deciding what the standard for obstruction of justice is, as the finer details of 18 U.S. Code § 1503 would only apply to a criminal trial, not the impeachment process.
In the time since this bombshell New York Times story broke, some politicians who have been wary to use the word “impeachment” have suggested that this could be where things are headed, including Angus King, an independent senator who said on CNN today that if Trump told James Comey to shut down an FBI investigation, this would be “as close to the legal definition of obstruction of justice” as possible.
On Twitter on Tuesday, Democratic Senator Richard Blumenthal said that we are witnessing an obstruction of justice case unfold.
We are witnessing an obstruction of justice case unfolding in real time.
Democratic Representative Hakeem Jeffries of New York on Tuesday suggested that this Comey conversation was obstruction of justice and that Donald Trump should be put in jail.
If Trump fired FBI director after he refused to end Flynn investigation, that’s obstruction of justice. Lock HIM up?
In a statement on Tuesday, House Minority Leader Nancy Pelosi said that Trump may have committed obstruction of justice, although she said it’s possible he merely committed an abuse of power.
“If these reports are true, the President’s brazen attempt to shut down the FBI’s investigation of Michael Flynn is an assault on the rule of law that is fundamental to our democracy,” Pelosi said. “At best, President Trump has committed a grave abuse of executive power. At worst, he has obstructed justice.”
Republican Representative Peter King told Real Clear Politics on Tuesday that if this conversation took place as reported, it would be a crime, and so he doubts that the Times report is accurate because if it were, James Comey would have brought this to someone’s attention earlier.
“It would have been a crime…”
Senator Lindsey Graham expressed a similar view, telling The Wall Street Journal, “If this happened the FBI director should have done something about it or quit.”