Calls to impeach Trump often lack the charm of a specific criminal charge. Our President is beginning to answer that challenge. The firing of FBI Director Comey is filled with amazing context. There are reports Trump sought a loyalty pledge from Comey, which was refused. Trump claims he asked Comey if he was under investigation. Two days after firing him, Trump sent a threatening tweet to Comey. These things walk dangerously close to the edge of specific criminal conduct.
WARNING: ACTUAL LEGAL STUFF TO FOLLOW WITH CITATIONS TO AND QUOTING FROM THE UNITED STATES CRIMINAL CODE.
Count 1: Obstruction of Justice.
We start with 18 U.S.C. 1503 which creates an offense for:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, . . . or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection . . .
By letter Trump terminated James Comey, impeding his investigation into the Trump campaign’s possible collusion with Russia’s interference in the election. The primary question is whether this was done for the purpose of impeding or obstructing the investigation. Surprisingly, Trump himself has been cooperative in suggesting that at least one purpose for his firing Comey was Comey’s investigation of the Russian collusion issue.
In Trump’s interview with NBC’s Lester Holt on May 11th Trump mentioned the “Russia thing” as a reason for firing Comey.
I was going to fire Comey knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.
The suggestion for this impermissible purpose is even found in Trump’s letter terminating Comey. Trump referenced the investigation stating “I greatly appreciate you informing me on three separate occasions that I am not under investigation.”
Count 2: Obstruction of Administrative Proceedings.
Perhaps Section 1503 is not applicable because its primary application is to judicial proceedings. In which case apply the above facts to 18 U.S.C. 1505.
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress
Count 3: Witness Tampering/Intimidation.
Comey is no longer an employee of the Department of Justice and has no official capacity to be interfered with. However, he remains a potential witness against Trump. Trump arguably attempted to threaten that witness in the midst of one of his early morning tweet storms on May 12th.
In this case the relevant statute is 18 U.S.C. 1512. There are two provisions of this section of the criminal code that might apply, first:
(b)Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to —
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to —
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(d) Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from —
(1) attending or testifying in an official proceeding . . .
(4) causing a criminal prosecution, or a parole or probation revocation proceeding, to be sought or instituted, or assisting in such prosecution or proceeding;
or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.
Some may feel these arguments are a stretch, but Trump’s conduct reasonably fits within these statutes. Notably, a judge would not decide on the interpretation of these provisions. Congress would, in impeachment proceedings.
The point here is that Trump, if not crossing the legal line, is dancing very, very close to it.
EDIT AND UPDATE: I don’t know if they read my article, but last night Representatives John Conyers and Elijah Cummings, ranking members of the House Committee on Judiciary and the House Committee on Oversight and Government Reform, forwarded a letter to White House Counsel Donald McGahn. The letter asks whether the tape Comey’s dinner conversation suggested by Trump exists and for copies of such tapes if they do. It also requested “all documents, memoranda, analyses, emails, and other communications relating to the President’s decision to dismiss Director Comey.” Here’s the text of the letter, suggesting much the same legal analysis I conducted above:
President Trump took to Twitter earlier today to threaten former FBI Director James Comey, stating that he “better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!”
Under Section 1512 of Title 18 of the U.S. Code, it is a crime to intimidate or threaten any potential witness with the intent to influence, delay, or prevent their official testimony.
The President’s actions this morning — as well as his admission yesterday on national television that he fired Director Comey because he was investigating Trump campaign officials and their connections to the Russian government — raise the specter of possible intimidation and obstruction of justice. The President’s actions also risk undermining the ongoing criminal and counter-intelligence investigations and the independence of federal law enforcement agencies.
We believe Congress should immediately seek the testimony of Director Comey to better understand the circumstances surrounding these events, although no House Committee Chairman has yet agreed to any such hearings.
Under normal circumstances, we would not consider credible any claims that the White House may have taped conversations of meetings with the President. However, because of the many false statements made by White House officials this week, we are compelled to ask whether any such recordings do in fact exist. If so, we request copies of all recordings in possession of the White House regarding this matter.
We also request all documents, memoranda, analyses, emails, and other communications relating to the President’s decision to dismiss Director Comey — a decision which the President declared yesterday he planned to make “regardless of [the Deputy Attorney General’s] recommendation” — and all discussions with Director Comey.
We would ask that you respond to this letter as promptly as possible, but in any event no later than the close of business of Thursday, May 25, 2017.
Thank you for your prompt attention to this matter.
I would add that even if no such tapes exist, Trump’s tweet was still intimidating. The inability to follow through on a threat does not change that it was a threat.