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Ask a Law Professor: Was it Obstruction?

With former FBI director James Comey’s hearing today, we heard it straight from the horse’s mouth that Comey interpreted President Trump’s “hope” that the FBI drop its investigation into then-National Security Advisor Mike Flynn’s contacts with Russia as a directive. This immediately brought up the question of whether Trump was obstructing justice by essentially ordering Comey to drop the investigation.

I asked Just Security‘s Alex Whiting, who was a federal prosecutor before his career as a Harvard Law professor, and Duke University law professor Samuel Buell for their two cents.

Here’s Whiting’s take:

I think Comey’s testimony, both written and oral, strengthened the case that Trump’s February 14 request to drop the Flynn investigation constituted obstruction. Trump had demanded Comey’s loyalty at the January dinner, and then at the White House he cleared the room of all other senior officials before making his request. Comey understood the request to be a directive or order and was shocked and disturbed by it, as were other senior FBI officials. Whether it’s a case that a prosecutor would choose to charge, and whether it warrants impeachment, are separate questions that can be debated. But Comey’s testimony made out a prima facie case of obstruction of justice.

Here’s what Buell had to say:

The hearing greatly sharpened the focus of this matter onto whether President Trump attempted to obstruct justice when he isolated FBI Director Comey after a White House meeting and pressured him to drop an active criminal investigation for no proper purpose.  All the other events lend emphasis, meaning, and context to that event.  But that event is the core and ultimate issue.

Based on Comey’s testimony, we know to a virtual certainty that the President is now under investigation for obstruction of justice.

That the President, through his attorney, is flatly denying the occurrence of the key conversation—in the face of clear testimony from one of the most credible witnesses one could ever come across—underlines the seriousness of this.  This is reminiscent of “I never had sex with that woman….”
The obstruction investigation has only begun and no one should expect a final conclusion from Special Counsel Mueller for quite some time.  But it is almost certain that any conclusion of that investigation will include, at the least, a statement from the Special Counsel to the Justice Department about whether the President committed a federal crime.  I don’t see how this isn’t obstruction of justice unless there is some “the President can do it if it involves his own employees” exception—which sounds dangerously close to placing the President not just in charge but entirely above the law.

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Managing Editor of Just Security Follow him on Twitter (@ReedJustSec).