The New York Times’s revelation that President Trump asked then-FBI Director James Comey to end the agency’s investigation into former National Security Adviser Michael Flynn was shocking. The report, backed up by a memo Comey wrote shortly after the meeting, suggested that Trump made a highly inappropriate request of a law enforcement official in an attempt to protect a past member of his administration.
According to Jimmy Gurulé, a professor of law at the University of Notre Dame who served as assistant attorney general for George H.W. Bush and undersecretary of the Treasury for enforcement under George W. Bush, the report suggested that Trump’s actions were worse than inappropriate.
“If the allegations are true, President Trump has committed a serious federal crime,” Gurulé stated in an email.
Here’s his explanation:
If President Trump asked then-FBI Director James Comey to drop the criminal investigation of General Michael Flynn, this would constitute obstruction of justice under 18 U.S.C. section 1505. Section 1505 makes it a crime to "endeavor to influence, obstruct, or impede" "any pending proceeding … before any department or agency of the United States." Obviously, Trump had knowledge that Flynn was the target of an FBI investigation. The FBI investigation was a "pending proceeding . . . before [a] department or agency of the United States." Further, if Trump had knowledge of a pending grand jury investigation targeting Flynn, his conduct would constitute an attempt to influence or obstruct a grand jury investigation. The FBI was an active participant in the grand jury investigation.
Also, 18 U.S.C. 1512(c)(2) punishes "Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so." A violation of section 1512 imposes a maximum sentence of 20 years
Last week, Gurulé argued in a CNN op-ed that Trump could be guilty of obstruction of justice if he fired Comey in order to impede investigations into either Flynn or his own campaign's ties to the Russian government.
If the new report about ordering Comey to stop investigating Flynn is true, then both that request and firing Comey for not obeying it (if that was indeed Trump’s motivation) arguably constitute obstruction of justice.
The prevailing view of constitutional law scholars is that the US president cannot be criminally charged by normal prosecutors, and any charges must be brought by Congress through the impeachment process. Unless Republicans in Congress change their minds, it is doubtful that the president will face any consequences if he is guilty of obstruction of justice.
But it is important for Americans to know whether or not the president is acting legally, and the Comey memo, and Gurulé’s legal analysis, strongly suggests Trump broke the law.