You don’t have to be the director of the FBI to have an awkward conversation with your boss.
Of course, if you are the director of the FBI, that conversation has much more weight, as James Comey found out after being fired by President Trump last month. And given that an investigation was underway at the time to determine whether or not the Russians interfered with the election that put Trump in the White House—well, awkward doesn’t even begin to describe it.
But if Comey’s testimony last week is on the level, and his conversations with Trump regarding investigations into former national security advisor Michael Flynn really did go down the way Comey describes, the question remains: Is Trump on the hook for obstruction of justice?
“This seemed to be an uncomfortable and improper conversation that would not, based on usual obstruction cases, sufficiently establish the crime of obstruction,” said former U.S. Attorney Kendall Coffey. Trump asking Comey for “loyalty,” for public confirmation that Trump himself was not under investigation, and “hoping” that Flynn would not be prosecuted—these are certainly questionable in terms of propriety, but not actionable in terms of the law.
Interestingly, Coffey notes that Comey’s testimony actually “gave both sides ammunition.” If Comey was so concerned about Trump’s actions, why didn’t he report the conversation when it happened back in February? What Comey did do—leaking the contents of a memo detailing his conversation with Trump to the New York Times—isn’t a crime, since the information wasn’t classified. Of course, just because it wasn’t classified doesn’t mean it was a classy move, particularly when more official channels were available to Comey if he were really concerned about the proceedings.
But back to obstruction. According to 18 U.S.Code § 1505, obstruction of justice is a federal crime in which someone “corruptly” tries to “influence, obstruct, or impede” the “due and proper administration of the law” in a proceeding or investigation.
Is that what happened here? According to many legal experts, it seems unlikely. The tricky bit is that, because Trump was Comey’s boss, he had every right to express concerns about the investigation into Flynn.
“Trump is in a unique position to tell Comey what to do,” said Andrew McBride, a former federal prosecutor and attorney with Perkins Coie LLP. Because Trump was Comey’s boss, “he could have simply ordered Comey to lay off Flynn,” and that “makes it harder to prove obstruction.”
So…obstruction of justice? Unlikely. Awkward, unprofessional conversations with the boss? Pretty much confirmed.
Attorney John Lauro probably summed it up best: “We learned two important lessons today: A president should not talk to an FBI director about a pending investigation, and government officials should not leak…information. We all have to wonder—where are the responsible adults?”
*Photo courtesy of Brookings Institution at Flickr Creative Commons.