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After the public testimony of Former FBI Director James Comey on Thursday, I reached out to several constitutional and criminal law experts to find out whether they read or heard, in either Comey’s introductory remarks or in his exchanges with senators, a case that President Trump attempted to obstruct justice.
I had been in touch with several of these experts in advance of the hearing, and there was some doubt before it as to whether Trump’s alleged words and actions met the threshold for attempted obstruction of justice. At the center of this debate is the idea of intent, which is notoriously difficult to prove in court.
In order to have obstructed justice, Harvard Law Professor Mark Tushnet told me Comey’s testimony would have needed to show that Trump “specifically wanted to derail an investigation, to prevent it from reaching what otherwise would be its conclusion.”
On Thursday, Comey did not say whether or not he thought Trump attempted to obstruct justice. “That's a conclusion I'm sure the special counsel will work towards to find out the intention and whether that's an offense,” he told Sen. Richard Burr (R-NC), the Republican chair of the Senate Intelligence Committee.
Nonetheless, several of the experts I heard from said that Comey’s testimony seemed to advance the argument that Trump was attempting to do so. Read their full responses below.
Diane Marie Amann, Professor of Law, University of Georgia
Establishing that someone obstructed justice requires proof that the person intended to do so. Intent is determined by looking at all the circumstances — not only the person's actual words, but also what the hearer understood them to mean. For this reason, a pivotal moment today occurred when Comey testified that he understood the President's words, "I hope you'll let this go," as an order to drop an ongoing FBI investigation.
Joshua Dressler, Professor of Law, Ohio State University
What strikes me as clear — clear beyond a reasonable doubt — is that President Trump acted improperly, even egregiously so. He crossed the line — way, way over the line — of propriety. Whether he crossed that line fully aware that he was acting wrongly or whether he was oblivious to proper and established protocol is a separate question. It simply stands out even more clearly from the testimony (and even the fact that some Republicans seem to acknowledge this).
Did President Trump act illegally, obstructing justice? Perhaps. It seems fairly clear (at least if you believe former Director Comey, which I do) that the President did seek to “influence” (a statutory term) the “due administration of justice.” The remaining issue is what his motivations were, and whether those motivations fit the statutory requirement that the obstruction be conducted with a “corrupt” state of mind. Comey’s firing is the best evidence so far (when coupled with the earlier interactions) that Trump was acting corruptly.
In lawyer terms, I would now say that a prima facie case of obstruction of justice has been proved (that is, that a reasonable jury or judge could be convinced — not, necessarily, that they would be convinced — that all of the elements of the crime have been shown to exist).
It remains an open question whether a sitting President can be indicted for any offense anyway. If one shifts, therefore, to impeachment based on obstruction of justice, we move from the law to politics, which is not my area of expertise. But, if a Democratic President had done this, I feel confident that a Republican-controlled House — and even a nonpartisan committee — would consider the conduct sufficiently close to the obstruction line to justify considering impeachment proceedings.
Lisa Kern Griffin, Professor of Law, Duke University
In terms of whether obstruction of justice occurred, what stood out the most to me about the testimony is that Director Comey interpreted President Trump’s statements about the Flynn investigation as a direction. In the context of the improper private meeting, the previous requests for loyalty, and then the subsequent termination of Director Comey, this conversation looks closer to obstruction than it did before today’s testimony.
The legal case is still developing and far from clear, and President Trump’s jeopardy is more political than legal in any event. But it’s important to understand that obstruction does not turn on whether Director Comey (or Admiral Rogers or DNI Coats or anyone else) felt or succumbed to pressure. What matters is whether President Trump intended to apply pressure. The obstruction statutes are quite broad. One does not actually have to succeed at thwarting an investigation in any way — the “endeavor” is sufficient.
Samuel Gross, Professor of Law, University of Michigan
Did Trump pressure Comey to end an investigation that could embarrass or damage Trump's administration? Yes. Trump has said so himself. Could Trump be indicted for obstruction of justice if he were not President? Sure. Is he guilty of obstruction of justice? That would be a question for a judge and jury to decide after trial.
But a sitting President cannot be indicted. The real issue is whether Congress concludes that this conduct, possibly together with other acts, justifies impeachment. That's a political question, and we won't know the answer for months if not years.
Paul Butler, Professor of Law, Georgetown University
Comey characterized the President’s statement, “I hope you will drop the Flynn investigation,” as a “direction” and “order.” This testimony substantially advances the case for obstruction of justice. Comey showed bad judgement for hedging and not emphatically rejecting the president when he asked for Comey's loyalty, and Comey didn't have a persuasive explanation for why he didn't answer more definitively. Still, Comey comes across as a person of integrity and if I were Tump I would not want to go up against him in front of a jury. Comey would be my star witness if I were prosecuting Trump for obstruction.
Eric Posner, Professor of Law, University of Chicago
Based on what I’ve seen, I think that Trump engaged in obstruction of justice in the legal sense. Clearly, Comey understood that Trump wanted him to stop the investigation of Flynn, and that understanding was reasonable in context. Plus, of course, Trump did fire Comey. Whether this matters, though, is a political question, which boils down to whether Republicans will be sufficiently disgusted with Trump to withdraw support. That I cannot predict.
Jimmy Gurulé, Professor of Law, University of Notre Dame
Following former FBI Director James Comey's congressional testimony today, there is credible evidence that President Trump attempted to interfere with and terminate the FBI investigation of General Michael Flynn for reasons unrelated to the merits of the case. When considered cumulatively this evidence establishes a prima facie case of obstruction of justice.
Mark Tushnet, Professor of Law, Harvard University
So far there's nothing that dramatically changes the picture — lots of pieces of evidence that could go into making a criminal case and very little to weaken such a case but nothing that in itself shows criminal intent.
Brandon Garrett, Professor of Law, University of Virginia
It is incredibly troubling to hear how Trump "was looking to get something" from Comey and that the President’s words amounted to a "direction" to the FBI director. The testimony only strengthened the concern that there was unlawful influence on pending investigations.
Also important was the integrity and utmost care with which Comey has documented these events. His deep credibility as a person and as a witness to these events, as compared to the shifting and outright false contrary accounts, itself dramatically bolsters the case for wrongdoing.
