Helen Klein Murillo and Ben Wittes over at Lawfare have done a terrific deep dive into whether an FBI investigation constitutes a “pending proceeding” under the federal obstruction of justice statutes. They decide that 18 U.S.C. § 1512 is likely the most promising statute among the various possible criminal provisions, and they note that there is a divide in the Circuits on whether an FBI investigation qualifies as a “pending proceeding.” They ultimately conclude that even if Trump’s conduct falls short of the technical requirements of the federal criminal statutes, it might nonetheless be sufficiently egregious to warrant impeachment, a separate political question.

To the extent an analysis of Trump’s potential criminal exposure is a useful data point in the broader discussion of whether impeachment, or other political consequences, are warranted, it’s worth considering another way that Trump might have obstructed justice. The other possibility to be explored is whether Trump acted to obstruct not just the pending FBI investigation, but a prospective grand jury investigation or federal criminal trial. The available information, if true, suggests that a plausible case might be available under this theory, but more facts will need to be known.  

As I noted in an earlier post, at present there appear to be two possible acts of obstruction: (1) Trump’s request of Comey on February 14, 2017 to lay off Flynn, and (2) Trump’s firing of Comey on May 9, 2017. Turning first to the second of these potential acts, it may be, as Murillo and Wittes note (citing a post by Andrew Crespo), that when Trump dismissed Comey there was already a grand jury investigation under way, and that Trump knew it. The day after Trump fired Comey, CNN reported that a grand jury sitting in Alexandria, Virginia had issued grand jury subpoenas in the prior weeks in the Flynn investigation. If true, then the grand jury was already in place before Comey’s firing, and Trump may very well have known of its existence. Recall that Trump met with Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein at the White House before dismissing Comey: Did Trump ask them where things stood in the investigation? Did he learn then, or otherwise, that a grand jury had been empaneled? Did he learn from the targets of associates of the grand jury subpoenas themselves? These are important questions for the pending investigations. If yes, then a case might be made (depending on the details of the evidence and the permissible inferences) that when Trump fired Comey, his intent was to obstruct that grand jury investigation, which indisputably qualifies as a “pending proceeding” under the explicit terms of 18 U.S.C. § 1512.

Turning now to the first potential obstruction moment, Trump’s one-on-one request of Comey on Valentine’s day to go easy on Flynn, this act has greater potential to be the basis of a criminal charge because it is harder to find an innocent explanation for Trump’s actions. When Trump fired Comey, he and his aides offered various rationales for the dismissal (though Trump himself connected the firing to the Russia investigation and, as I argued in my earlier post, the firing has to be considered in the context of all of Trump’s other actions towards Comey). Therefore, the prosecution would have to prove beyond a reasonable doubt that Trump’s true intention among several options was to impede the ongoing FBI investigations. Regarding the Valentine’s day conversation, however, it is hard to argue that Trump had any other purpose than to shut down the case against Flynn. This request by Trump feels, therefore, much more like a classic case of obstruction. However, there is no suggestion that there was a grand jury sitting at that time, so proving that this was obstruction under the criminal statutes would require either concluding that an FBI investigation constitutes a “pending proceeding,” or relying on an alternative theory, that Trump’s intent at the time included impeding a prospective grand jury proceeding or criminal trial. Is that a plausible theory on the law and the facts?

As Murillo and Wittes note, part of what makes § 1512 a potential option on these facts is that it explicitly states that “an official proceeding need not be pending or about to be instituted at the time of the offense.” Various Circuits interpreting this provision have differed slightly on what the government must prove regarding the defendant’s state of mind regarding a prospective proceeding, ranging from a showing that it was “foreseeable” to the defendant (see, e.g. United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009)) to proof that it was “contemplated” by him or her (see, e.g., United States v. Pastruk, 781 F.3d 438, 445 (8th Cir. 2015)). The Supreme Court in Arthur Andersen indicated that proof that a proceeding was in some way envisaged by the defendant protects against arguably innocent conduct (such as shredding documents pursuant to a standing document retention policy) that unintentionally ends up having an effect on a prospective proceeding.

Let’s assume it must be shown that the defendant “contemplated” a future proceeding and acted to obstruct it, likely the most stringent test of the various possibilities. Prosecutors might then argue that from the beginning, Trump was concerned not just about an investigation into Flynn and the broader Russia connections, but about the future consequences of that investigation, where it might lead. He started off by trying to persuade Comey to go easy on Flynn, but then when he saw that the investigation was not going away but was instead continuing to gain steam and momentum, he acted more decisively to impede it by firing Comey. Moreover, Trump would have known from an early point that a grand jury investigation into both Flynn’s conduct and the broader Russia affair was inevitable.

According to The New York Times, Comey recorded in a memo that on Valentine’s day Trump pulled Comey aside, getting him alone, and said, “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.” Trump further told Comey that Flynn had done nothing wrong, according to the memo. This request already suggests that Trump is thinking about outcomes, not just process. It’s not just the investigation he is concerned about; he’s worried about what will happen to Flynn. Trump isn’t just asking for an end to the investigation, he appears to be asking for a recommendation of no prosecution, letting Flynn go.

Remember, too, that Trump would have understood from the Hillary Clinton email investigation that Comey would ultimately have to make a recommendation to the Justice Department regarding prosecution. It is very hard to believe that Trump was not also thinking about this responsibility when he asked Comey to find a way to let Flynn go. Further, at this time Trump would have already known that Flynn likely faced criminal exposure. Trump knew that on January 26, Acting Attorney General Sally Yates came to the White House to tell White House Counsel Donald McGahn that Flynn had lied to Vice President Pence about his conversation with Russian ambassador Sergey Kislyak before the inauguration. McGahn would have also known that the FBI had interviewed Flynn the day before Yates come to the White House: If McGahn was not explicitly told, he could have easily deduced that Flynn also likely lied in his FBI interview, a federal crime (18 U.S.C. § 1001). One has to imagine that McGahn communicated this fact to the President (another area requiring investigation), or at least that the President learned of it before firing Flynn some 18 days later (more investigation). This means that when Trump asked Comey to let Flynn go, he likely knew that there was very possibly something to let go, further supporting the theory that Trump was not just asking for the investigation to be wrapped up, but was asking for some consideration on Comey’s prosecutorial recommendation.

Finally, the prominence and nature of the Flynn investigation, and its connection to the larger Russia probe, would have likely led Trump, or his advisers, to understand that a credible investigation would require some degree of thoroughness, and that a grand jury would ultimately be required to collect documents and testimonies. It is unlikely that Trump thought that Comey would shut down the investigation the next day; rather, he was asking Comey to “see [his] way clear to letting this go.” Complete the investigation, but give Flynn a break. These facts all suggest that from the very beginning Trump was seeking to foreclose any grand jury investigation or indictment of Flynn.

Shifting back to the second possible moment of obstruction, Trump’s firing of Comey, in the event it could not be proven that there was a grand jury investigation underway at that time, or that Trump knew of it, then the evidence might alternatively show that certainly by March 9 Trump must have expected a future grand jury investigation or criminal trials. The case only gets stronger after February 14: additional criminal allegations against Flynn emerged, Comey publicly confirmed a criminal investigation in the larger Russia probe, additional Trump associates became implicated, and the likelihood of grand jury subpoenas for evidence became more certain. By March 9, Trump must have understood that a grand jury, and quite likely criminal trials, were ahead. On the basis of Trump’s own statements and the overall record, it could be inferred that in firing Comey he was hoping to impede these future proceedings.

A few final points in conclusion. First, this analysis can only suggest a potential obstruction theory going forward, nothing more. Because so much is still unknown, it cannot be determined if it could be proven. But it is a possible theory going forward, warranting additional investigation. Second, it might be tempting to wonder to what extent Trump thought anything through when he engaged with Comey, given Trump’s apparent lack of serious thinking on many topics (though the evidence suggests that he has given considerable thought to Comey and the various investigations probing the administration). But it would be a mistake to over-read the intent requirement here: the prospective proceeding theory requires some showing that the defendant contemplated a future evolution of the investigation into a more formal phase, but it does not require a lawyerly understanding of how things might develop. Finally, Murillo and Wittes are right that an analysis of Trump’s criminal exposure is not the beginning and end of the inquiry. Ultimately it will be for Congress, or the American public, to decide what political consequences should result from Trump’s actions. Impeachment proceedings are not bound to criminal rules of evidence of burdens of proof, and can be based on abuses of power that are broader than criminal infractions. In this case, for example, Congress might conclude that obstructing an FBI investigation with a corrupt motive is sufficient, regardless of any consideration of an ongoing or future proceeding. Ultimately those political decisions of Congress and the public will be informed, but not resolved, by assessments of whether the evidence shows that Trump committed crimes.