Today, former FBI director, James Comey, testified before the U.S. Senate Intelligence Committee concerning whether President Trump committed impeachable offenses. In response, virtually every television, radio, and print outlet brought forth armies of pundits and legal experts opining on Comey’s testimony and Trump’s acts. Despite the cacophony of voices, these news accounts leave most Americans deciding on the matter based largely upon party affiliation. This is because the news portrayals are filled with opinions without much substance or legal analysis.
What is thus far astonishing, despite cable news running non-stop coverage, social media equally inundating us, and print media at times even publishing opinions on the testimony before the hearings commenced, there has been little thought on whether Trump actually committed an impeachable offense if all the allegations are true. One would think for most of us, especially students of law and politics, the legal basis for impeachment should be where the rubber hits the road, so to speak. One of the few accounts to address the legal basis was the New York Times, which published an op-ed arguing even if Comey is telling the truth, Trump did not engage in obstruction of justice. https://www.nytimes.com/2017/05/17/opinion/trumps-fbi-comey-statements-are-not-an-obstruction-of-justice.html?_r=0 . The Times essay is fairly persuasive in that it uses the federal obstruction of justice statute to argue the president’s actions did not rise to the level of a crime. In the essay, Professor Elizabeth Foley looks to 18 U.S.C. Sections 1510 and 1508 to primarily argue there was no violation because an FBI investigation does not constitute the required “pending judicial proceeding ” under the statutes. The provisions cited in the Times article, however, are not the sole means for a defendant to be held to have committed obstruction of justice. Indeed, the very same statute, Title 18 of the U.S. Code provides the basis to find the president has in fact obstructed justice. Specifically, a different section: 1503 of Title 18, is relevant, and may very well be decisive in this case. This section is considered the “catch-all” obstruction of justice provision, and it provides:
“Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States…in the discharge of his duty…shall be punished”
In fact, federal courts have found obstruction of justice when the defendant impeded FBI investigations. In Tozala v. United States, C.A. 7 (Wis.) 2008, 545 F.3d 517 (7th Cir. 2008), for instance, a federal court of appeals found an FBI investigation constituted a “pending proceeding” for the purposes of finding the defendant obstructed justice. Indeed, federal courts have repeatedly recognized key to the obstruction crime is the defendant’s knowledge he or she was intending to thwart efforts undertaken to determine what is just. As the Seventh Circuit Court of Appeals, arguably the most conservative federal appeals court, in U.S. v. Furkin, 119 F.3d 1276 (1997), observed, Section 1503’s “Omnibus Clause,” is a catch-all provision prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice. The Furkin Court also importantly observed, the reason for Section 1503’s and related provisions’ requirements of a “pending proceeding” is to ensure the defendant was aware he or she was intending to obstruct justice. Id. (“[I]nvestigations undertaken with the intention of presenting evidence before a grand jury are sufficient to constitute ‘the due administration of justice’ under § 1503.”).
In the matter Comey testified to, there is little question, if the evidence establishes Trump indeed attempted to end the FBI investigation by influencing the FBI director, among other related allegations, President Trump was aware he was intending to interfere with the administration of justice. Given Comey’s record for veracity, especially compared to that of Trump, coupled with Comey’s contemporaneous memoranda concerning Trump’s troubling repeated “requests” to end the Michael Flynn investigation as well as Trump’s other efforts to influence related investigations, and the actual firing of the FBI director, which Trump admitted was due to the Russia Scandal, Trump unquestionably knew what he was doing in this case. Neither Congress nor Special Prosecutor Mueller should rely on technical arguments that fly in the face of the intent and spirit of the obstruction of justice statutes to sanction behavior that most Americans, and in fact the world, find repugnant.