The “obstruction of justice” tweets are already flying

The prepared testimony of former FBI Director James Comey was released Wednesday afternoon — and at least two prominent legal scholars were quick to say they saw it making the case that President Trump attempted to obstruct justice.

In the testimony, which the Senate Intelligence Committee released the afternoon before Comey was scheduled to deliver it, Comey writes that Trump brought up the FBI investigation into former National Security Adviser Michael Flynn and said to Comey, “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.”

Legal analyst Jeffrey Toobin argued on CNN Wednesday that if Comey’s testimony is accurate, Trump’s actions constitute obstruction of justice.

Seth Abramson, an attorney and law professor at the University of New Hampshire, tweeted that if Comey’s report is accurate, the president would be considered guilty of obstruction of justice.

To be clear, these are just the opinions of two analysts, not lawyers involved in investigating Trump. That responsibility falls to special counsel Robert Mueller, who took over the investigation after Comey was fired. David French, a senior fellow at the National Review Institute, raises the possibility that Trump did not obstruct justice, but rather that his behavior constituted an “abuse of power.”

Responding to a New York Times report in May that the president asked James Comey to stop investigating Flynn, University of Notre Dame law professor Jimmy Gurulé wrote in an email to Vox’s Dylan Matthews that Trump’s alleged actions, if true, could be considered a federal crime.

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.

So while Comey’s testimony as prepared does not directly allege obstruction of justice, the question of whether it happened is still very much up for debate. It seems certain Comey face questions aimed at strengthening or weakening that case in Thursday’s hearing.

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