In the many discussions of President Donald Trump’s decision to fire former FBI Director James Comey, it is commonly assumed that if the president fired Comey for the purpose of interfering with the investigation into Russian electoral interference, then the president is guilty of obstructing justice. We find the president’s conduct deeply troubling and corrosive of respect for the office of the president, and we understand the view that his conduct, even if not a criminal violation, conceivably may become part of an overall showing of abuse of authority warranting impeachment. But putting aside any issue of presidential immunity (or privilege stemming from his official authority), the question remains: Did the president commit a violation of existing federal criminal law when he fired the FBI director? Special Counsel Robert Mueller’s remit is, after all, limited to the investigation of violations of federal criminal law. Many commentators assume without extended analysis that the president has violated one of several criminal statutes that prohibit, in broad terms, the obstruction of justice. But, the case against President Trump is more difficult than many think.

Section 1503 and the Supreme Court’s Aguilar Decision

Most of the discussion has focused on the federal law known as 18 U.S.C. § 1503, which provides that 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 administration of justice” is guilty of a felony. We think the widespread reliance on this obstruction statute when discussing the president’s criminal exposure for the Comey firing may be misplaced. That’s because the Supreme Court’s principal decision construing this provision—United States v. Aguilar—suggests that any potentially obstructive acts must be directed at a pending “proceeding,” normally a grand jury or judicial proceeding. In other words, Mueller would have to show (1) there was a pending grand jury proceeding at the time, (2) the president knew about those grand jury proceedings, and that even if the president tried to thwart the FBI investigation (3) his action was directed at the grand jury proceedings and (4) likely to affect those proceedings. That’s an uphill battle.

In Aguilar, the defendant, a federal judge, Robert Aguilar, was approached by a family member and asked to make inquiries about Stanley Weigel, another federal district judge in the same court before whom Michael Rudy Tham, the relative’s associate, was petitioning for post-conviction relief. In making the requested inquiry, Aguilar discovered Tham was the subject of a federal wiretap and that Aguilar’s relative was listed as an interceptee. Aguilar then relayed this information to his relative, thereby disclosing the existence of the wiretap. Two months later, a grand jury was convened to investigate possible interference with Tham’s case, and two FBI agents interviewed Aguilar. During the course of the questioning, Aguilar lied to the agents both about his role in the case and his knowledge of the wiretap. The grand jury then returned an indictment against Aguilar, and he was convicted in a jury trial on two separate counts for  improperly disclosing a wiretap in violation of § 2232(c)  (which makes it a crime to give prior notice of an authorized search or seizure to any person) and for obstructing justice under §1503. On appeal, a panel of the Ninth Circuit overturned Aguilar’s § 1503 conviction, but affirmed his conviction under § 2232(c). On rehearing en banc, the Ninth Circuit reversed both convictions. On the § 1503 count, the Court of Appeals held that Aguilar “had not interfered with a pending judicial proceeding [under] § 1503.” The court explained that the FBI agents’ investigation was neither authorized nor directed by the grand jury, and that lying to investigators did not “corruptly influence” the grand jury proceeding.

The Supreme Court affirmed the Ninth Circuit’s ruling in part and reversed it in part, holding that Aguilar’s conviction for violating § 1503 could not stand, while sustaining his conviction under § 2232. In his opinion for the Court, Chief Justice William Rehnquist noted that in Pettibone v. United States, a case from 1893 in which the Court interpreted § 1503’s predecessor, the Court had ruled that a defendant “lacking knowledge of a pending proceeding necessarily lacked the evil intent to obstruct” and thus could not be convicted for violating the predecessor statute’s nearly identical omnibus provision. In construing § 1503, the Aguilar Court specified that the accused must act with the “intent to influence judicial or grand jury proceedings” and that merely acting with “an intent to influence some ancillary proceeding, such as an investigation independent of the court or grand jury’s authority” was not enough. Thus, under Aguilar, the defendant not only has to know that a covered proceeding is pending but must act with the intent to obstruct that proceeding. Echoing language used in the lower courts, the Court characterized its test as a “nexus requirement” that the defendant’s conduct have some “relationship in time, causation, or logic with the judicial proceedings.” Alternatively, the Court stated, this requirement could be phrased as a “natural and probable effect” test where a defendant could not be found guilty of violating § 1503 unless he has “knowledge that his actions are likely to affect the judicial proceeding.”

On the facts of Aguilar, the Court ruled that “uttering false statements to an investigating agent…who might or might not testify before a grand jury” did not violate § 1503. It rejected the argument, offered by the government, that because Aguilar knew a grand jury had been convened, he had knowledge and therefore intended that his false statements would be relayed to the grand jury so as to “thwart the grand jury investigation and not just the FBI investigation.” There was no evidence, the Court emphasized, that the agents “acted as an arm of the grand jury,” and nor was there any suggestion that “the grand jury had even summoned the testimony of the investigating agents.” By contrast, where a defendant “delivers false testimony or documents to the grand jury itself,” it is virtually “assure[d] that the grand jury will consider the [false] material.” Here, on the other hand, the effect of giving false testimony to investigating agents who did not act at the behest of, and were not summoned by, the grand jury was “far more speculative.” The Court concluded that Aguilar’s conduct did not have the “natural and probable effect” of obstructing the kind of judicial or grand jury proceeding that is the subject of the statute’s protection.

The Aguilar holding, it should be noted, is based on a gloss of the plain text of § 1503 because there is no express requirement in that statute that the obstruction relate to a pending judicial or grand jury proceeding or that the defendant act with specific intent to obstruct that proceeding. The Court’s discussion of Justice Antonin Scalia’s dissent on the § 1503 count may provide a clue as to why the majority thought its interpretation of the text was necessary. While not quarreling with the “pending proceeding” requirement, Justice Scalia disagreed that the government had to prove that the defendant was aware that the natural and probable effect of his conduct would be the obstruction of a covered proceeding. In Justice Scalia’s view, a requirement that the defendant’s conduct both have such an effect and that the defendant be aware of that effect is without basis in the statute. Rather, he maintained,  any act which is done “with intent to obstruct” the proceeding is sufficient to establish guilt under the statute irrespective of its natural and probable effect. In response to Justice Scalia, the Court offered a scenario in which someone who, knowing of a pending proceeding investigating his criminal conduct, lies to his spouse in the belief that, if the spouse were interviewed by investigators, the lie might make its way to the grand jury and thwart the investigation. The Court stated that while the intent to obstruct justice is plainly present, the defendant’s “culpability is a good deal less clear from the statute than we usually require in order to impose criminal liability.”

If no grand jury investigation involving the Flynn or Russia investigation was pending when Trump fired Comey, Aguilar suggests that a conviction under § 1503 would be difficult to sustain. In early April, a grand jury sitting in the Eastern District of Virginia issued a series of subpoenas to associates of Trump’s former national security adviser, retired Lt. Gen. Michael Flynn. As of this writing, it is not known whether the president knew of the grand jury proceeding at this time, nor whether he discussed with Comey the workings of that proceeding. The president certainly wanted Comey to drop his investigation of Flynn, but it is not clear that the president’s interference was directed at the grand jury proceeding itself, which Aguilar seems to require. Like Aguilar, the president’s conduct seemingly was not directed at a covered proceeding at all, but rather was done with the “intent to influence some ancillary proceeding” or, in other words “an investigation independent of the court or grand jury’s authority” (here, the FBI investigation), which the Aguilar Court held was insufficient to sustain a conviction under § 1503.

Admittedly, the language of Aguilar is not crystal clear. While the Court’s emphasis on the relationship between the defendant’s obstructive act and a covered proceeding suggest that liability cannot attach without proof that the defendant knew of a then-pending proceeding, and attempted to interfere with that proceeding, some might read the Court’s discussion of the nexus requirement’s “relation in time, logic, or causation” language to encompass interference with investigations that have not yet culminated in judicial or grand jury proceedings but which nevertheless prey on the defendant’s mind at the time of the obstructive conduct because a proceeding is foreseeable. Such a view would be difficult to square with the holding of Aguilar, where the defendant undoubtedly knew a grand jury proceeding was foreseeable  – indeed, FBI agents testified they told him a grand jury had been convened – yet that was insufficient under § 1503.

A similar issue, raised in the context of construing 26 U.S.C. § 7212(a), a statute prohibiting “the obstruction of the due administration of [the tax code]”  is currently before the Supreme Court in Marinello v. United States (No. 16-1144). There, the defendant is arguing § 7212(a) ought to be construed like § 1503’s omnibus clause such that the government must prove he was aware of pending IRS proceeding and acted with the intent to obstruct it.

Section 1512(c) and the Supreme Court’s Arthur Andersen Decision

While it seems reasonably clear that a proceeding must be pending in order for a defendant to be liable under § 1503, another relevant statute, § 1512(c)(2), criminalizes corruptly obstructing, influencing, or impeding “any official proceeding” irrespective of whether it is pending at the time of the defendant’s conduct. The Supreme Court has never interpreted § 1512(c)(1) or (c)(2) but it has, in Arthur Andersen LLP v. United States in 2005, passed judgment on the meaning of another section of the statute: § 1512(b). That provision subjects to criminal liability anyone who “knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person” intending to “cause or induce [that person] to” withhold or destroy evidence, evade legal process, or be absent from an “official proceeding” to which that person had been summoned. In Arthur Andersen, the defendant accounting firm had a longstanding policy of shredding documents related to the affairs of its clients. Among its clients was Enron, the natural resources giant, which, along with the defendant, would eventually be involved in a massive accounting fraud scandal. Though the accounting firm knew that the documents scheduled for destruction under its document policy would likely be of interest in an eventual investigation, it adhered to that policy until it was served with a subpoena for its records. Arthur Andersen was convicted under § 1512(b) and, on appeal, the Fifth Circuit affirmed the conviction. The Supreme Court eventually reversed it.

Writing for the Court, Chief Justice Rehnquist addressed the government’s argument that, because the statute expressly applied to all official proceedings irrespective of whether they were pending or not, the government did not have to prove that the accounting firm had any particular proceeding in mind when it shredded the documents at issue in the subpoena. The Court rejected this argument. Referencing its decision in Aguilar, the Court stated that while § 1512 did not require a proceeding to be pending, that did not mean a defendant could be guilty of performing a “knowingly … corrupt act” within the meaning of the statute even if that proceeding was not foreseeable. “It is … one thing to say,” Chief Justice Rehnquist wrote, “that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not be even foreseen.”  The Court reiterated Aguilar’s guiding logic, “‘[I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding,’” we explained [in Aguilar], ‘he lacks the requisite intent to obstruct.’”

The FBI Investigation and the Scope of the Obstruction Statutes

The FBI’s investigation of Russian interference in the 2016 election and whether the Trump campaign played any role in that might come under §1512(c) in one of two ways. First, the FBI investigation could be an “official proceeding…before…a Federal Government agency.” Second, because the Russia investigation could have resulted in a grand jury proceeding, any attempt to obstruct the investigation would constitute an attempt to obstruct the prospective grand jury proceeding. The first reading is a strain because the statutory language “official proceeding before … a Federal Government agency,” as the Ninth Circuit ruled in 2013 in United States v. Ermoian, suggests a formal, adjudicatory character, which the Russia investigation lacked at the time of Comey’s firing. The Ermoian court concluded: “a criminal investigation is not an ‘official proceeding’ under” § 1512. There is, however, a split in the Circuits on this question. The Second Circuit, for example, has held, in United States v. Gonzales, that a Drug Enforcement Administration investigation constituted an “official proceeding” under the statute. The court reasoned that it needed to “read the term ‘official proceeding’ broadly in order to effect Congress’ purpose” in passing § 1512.

The second reading faces difficulties under Aguilar and Arthur Andersen, both of which suggest that the prospective proceeding must be foreseeable or contemplated, that the defendant’s conduct was intended to compromise that proceeding, and that the effects of the defendant’s conduct on the proceeding are not speculative. In Aguilar, merely making false statements to FBI agents even when a grand jury had already been empaneled did not constitute actionable obstruction under § 1503 because the effect on the prospective proceeding was speculative. By contrast, the Court noted, directly providing false statements to the grand jury would constitute obstruction because doing so “all but assured that the grand jury [would] consider the material in its deliberations.” If Aguilar’s essential teaching on the intent requirement extends to § 1512 prosecutions, the defendant must intend to affect the actual workings of the covered proceeding As of now, there is little evidence that the president knew of any grand jury proceeding and  that the president intended the FBI under Comey to provide false information to, or otherwise tamper with, the grand jury – which the Aguilar Court held would be sufficient to sustain a conviction under § 1503. At worst, on our present understanding of the facts,  the president intended to dissuade Comey, who was involved in a counterintelligence inquiry into Russian meddling in our elections, from continuing his investigation of Flynn, but there is no evidence he intended to interfere with any grand jury proceeding.  Again, the president’s firing of Comey was a troubling act, and  may become part of a showing of abuse of position making its way into a bill of impeachment, but (based on what we know) was not criminally culpable under the Court’s obstruction of justice jurisprudence.

It must be acknowledged that § 1512, like § 1503, contains sweeping language. The Court’s cases counsel that it is essential that statutes with such broad language be kept within their appropriate bounds, for, in “assessing the reach of federal criminal statute[s],” courts must be sensitive to the “concern that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed” lest a broadly worded, ambiguous provision capture conduct that falls below the level of “culpability … we usually require in order to impose criminal liability.” In sum, whatever our feelings about the current president or his conduct in office, we must be cautious about expanding the scope of the obstruction statutes to avoid the risk they criminalize merely self-protective or inappropriate, but not criminal, conduct.

(Mark Wilson/Getty Images)