By Ben Clements & Ron Fein
*So far. This post will be updated as needed as events unfold.
Obstruction of justice is grounds for impeachment. Under Article II of the Constitution, the president is subject to impeachment for “high Crimes and Misdemeanors.”
“[P]revent[ing], obstruct[ing], and imped[ing] the administration of justice” is an impeachable high crime or misdemeanor that can be effected by “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States [and] the Federal Bureau of Investigation.” (Those quotations are from the first article of impeachment against Richard Nixon.)
Notably, the category of “high Crimes and Misdemeanors’ is broader than the specifics of federal criminal statutes. Consequently, the question of whether a president should be impeached for obstruction of justice is distinct from the question of whether there is sufficient evidence, admissible in federal court, to persuade a jury beyond a reasonable doubt that President Trump violated a specific federal obstruction of justice statute. For this reason, for purposes of the obstruction of justice analysis, we don’t need to wait for the special counsel to complete a criminal investigation, and we don’t even need to know the full details of the FBI investigation(s) that he obstructed. In fact, for obstruction of justice purposes, it is irrelevant whether or not the underlying investigation ultimately leads to the special counsel prosecuting anyone. The question is simply whether the president endeavored to interfere with or impede that investigation.
Obstruction of justice can be established from the course of conduct below. Even if any one item standing alone is not conclusive, together they form a clear pattern. Furthermore, the House’s impeachment investigation will not require advanced investigative techniques, such as forensic science or signals intelligence. Much of the evidence comes from President Trump’s own mouth on camera or his Twitter feed. The House Judiciary Committee can investigate the rest through documents and examination of witnesses (including, if he desires, President Trump himself).
Publicly available facts, from President Trump’s own statements (on camera and on Twitter) and news reports, indicate the following course of conduct:
1. IMPROPER DEMAND FOR LOYALTY
On January 26, 2017, President Trump learned that the FBI was investigating General Flynn. That day, then-Acting Attorney General Sally Yates warned White House Counsel Don McGahn about dishonest statements made by Lieutenant General (and then National Security Advisor) Michael Flynn. As the White House later stated, “[i]mmediately after the Department of Justice notified the White House Counsel of the situation, the White House Counsel briefed the president and a small group of senior advisors.” The very next day, January 27, President Trump invited FBI Director Comey to a private one-on-one dinner at the White House. At this dinner, President Trump asked the FBI Director for “loyalty.”
This was an attempt to gain influence over and/or intimidate the official in charge of a pending investigation. It can also be viewed as a form of bribery: offering to allow Director Comey to keep his job, if he would be “loyal” to the president.
2. IMPROPER REQUEST TO ABANDON INVESTIGATION
On February 14, 2017, President Trump, after an Oval Office meeting with Vice President Pence, Attorney General Sessions, and Director Comey, asked Pence and Sessions to clear the room. He then asked FBI Director Comey to abandon the investigation into General Flynn, who had been forced to resign just one day earlier. According to a contemporaneous memo written by Director Comey, President Trump said to Director Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’ The President told Director Comey that, in his view, General Flynn had done nothing wrong.
President Trump’s request to “let this go” was an attempt to interfere with the ongoing FBI investigation into General Flynn.
3. IMPROPER PRESSURE TO MAKE PUBLIC STATEMENTS REGARDING INVESTIGATION
Sometime in February 2017, President Trump called Director Comey and asked him when federal authorities were going to state publicly that Mr. Trump was not personally under investigation. (Mr. Comey told the president to follow the proper procedures and have the White House counsel send any inquiries regarding FBI investigations to the Justice Department.) And on February 15, White House Chief of Staff Reince Priebus called Director Comey and asked Director Comey to help counter news reports that Mr. Trump’s associates had been in contact with Russian intelligence officials during the campaign.
The President’s call, and his Chief of Staff’s call (which, as with the Nixon impeachment investigation, may be attributed to the president) was an attempt to prevent, or interfere with, an FBI investigation into Mr. Trump and his associates.
4. ATTEMPT TO MISUSE INTELLIGENCE OFFICIALS TO INTERFERE WITH INVESTIGATION
Sometime between March 20 and approximately March 27, President Trump asked two top intelligence officials to publicly deny the existence of any evidence against Trump in the matter under FBI investigation. Specifically, within days of Director Comey’s March 20 testimony to the House Intelligence Committee that the FBI was investigating “the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts,” Trump personally contacted Director of National Intelligence Dan Coats and asked him to publicly deny any evidence of collusion between the Trump campaign and Russian officials.
Director Coats deemed the request inappropriate, and refused the request. Shortly afterwards, President Trump made a similar request to Admiral Rogers, the NSA director, who similarly refused. (Trump’s conversation with Admiral Rogers was documented in a contemporaneous internal memo written by a senior NSA official.)
At about the same time, “senior White House officials sounded out top intelligence officials about the possibility of intervening directly with Comey to encourage the FBI to drop its probe of Michael Flynn.” The line of questioning was reportedly paraphrased by one official as “Can we ask him to shut down the investigation? Are you able to assist in this matter?”
This was an attempt to misuse federal officials to interfere with another agency’s investigation. It is even more direct than President Nixon’s “smoking gun,” in which he asked his chief of staff to ask the Central Intelligence Agency to help derail an FBI investigation. Here, President Trump called the intelligence officials himself.
5. MISUSE OF FEDERAL OFFICIALS TO PROVIDE FALSE PRETEXT
By his own later admission, on or before May 8, 2017, President Trump decided to fire Director Comey because of the investigation in question. (See point #6.) However, he first enlisted Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions to create pretextual memos offering an unrelated basis to fire the FBI Director—that he had improperly disclosed information about a separate investigation involving Hillary Clinton. Deputy Attorney General Rosenstein later told Congress in a prepared statement:
On May 8, I learned that President Trump intended to remove Director Comey and sought my advice and input. . . . I wrote a brief memorandum to the Attorney General summarizing my longstanding concerns about Director Comey’s public statements concerning the Secretary Clinton email investigation. I chose the issues to include in my memorandum.
In sum, President Trump first decided to fire Comey, then (at the president’s request) Deputy Attorney General Rosenstein prepared a memorandum consisting of issues that Rosenstein chose as a rationale for the firing, which therefore was not the basis that President Trump used to arrive at his initial decision.
President Trump’s use of federal employees to create a false pretext is independent evidence of obstruction of justice because it was intended to mislead future investigators and thereby impede or obstruct the administration of justice.
6. TERMINATION OF FBI DIRECTOR TO INTERFERE WITH AN ONGOING INVESTIGATION
On May 9, 2017, President Trump fired Director Comey. While he initially claimed this was for reasons cited in the pretextual memos (see point #5), he later (May 11) explained the real reason to NBC interviewer Lester Holt:
I– I was going to fire Comey. Uh I– there’s no good time to do it by the way. . . . [Deputy Attorney General Rosenstein] made a recommendation but regardless of recommendation 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 have won.
The most direct interpretation of the president’s on-camera statement is that he admitted to firing FBI Director Comey because he was unhappy with the course of an investigation (“this Russia thing with Trump and Russia.”) At minimum, it demonstrates his belief that firing Comey could negatively affect the investigation.
On May 10 (the day after the firing but one day before he explained the real reason to Lester Holt), he revealed his motive for the firing to the Russian ambassador and foreign minister in the Oval Office, in the presence of several American officials. According to meeting notes that the White House does not dispute, the president stated: “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. I’m not under investigation.” This confirms that his reason for firing Director Comey was because he “faced great pressure” from the FBI’s investigation, but with Comey fired, “[t]hat’s taken off.”
President Trump’s decision to fire Director Comey because of his belief that “this Russia thing with Trump and Russia is a made up story” and that firing Comey would “take off” the “great pressure” he faced “because of Russia” constituted interfering or endeavoring to interfere with the conduct of an investigation by the Federal Bureau of Investigation by firing its director.
7. FALSE STATEMENTS TO THE PUBLIC AND THE FBI REGARDING FBI DIRECTOR’S STATEMENTS REGARDING THE INVESTIGATION
On May 9, 2017, in the official (and, as established in points #5 and 6, pretextual) memorandum in which President Trump told Director Comey that he was being fired, President Trump wrote: “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the Bureau.”
President Trump’s claim that Director Comey had informed him, on three separate occasions, that he was not under investigation, is not credible. It is difficult to credit that a sitting FBI Director, who had in the past been rigorous (to a fault) in protecting his view of the independence of the FBI’s investigations, would comment on such matters to the president.
Because President Trump’s letter was distributed publicly, its effect was to complicate and impede the FBI’s investigation. It implicitly threatened the FBI that he would undermine further investigation by concocting a diversionary false trail of supposed exculpatory assurances from investigators. At minimum, it provides further evidence of an overall intent to obstruct justice.
8. INTIMIDATION OF WITNESS BY INSINUATING THAT HE HAD RECORDED CONVERSATIONS
On May 12, 2017, after widespread negative reaction to the Comey firing among the public, media, and members of Congress, President Trump tweeted:
James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!
— Donald J. Trump (@realDonaldTrump) May 12, 2017
This tweet was intended to deter former FBI Director Comey (now no longer a law enforcement officer, but a witness in a potential obstruction case) from speaking out. It acted to threaten and intimidate FBI Director Comey against sharing unfavorable information about the president.
CONCLUSION
President Trump engaged in a sustained course of attempts to interfere with ongoing FBI investigations. He first asked, then pressured, FBI Director Comey to abandon his investigations; when Comey would not, Trump enlisted federal officials to develop a pretextual rationale, and fired him; and even after the firing, attempted to intimidate him over Twitter. The evidence is compelling, does not require sophisticated investigative techniques, and in several instances, comes from the president’s own mouth on video, on Twitter, or in the presence of reputable witnesses. The House Judiciary Committee should begin an impeachment investigation immediately.