We are in unprecedented territory, but one can make an argument that in tonight’s NBC interview, Trump just confessed to the high crime of obstruction of justice in violation of 18 U.S.C. Sections 1503 and 1505 [update: 1512(c)(2) might be most relevant].
You can find the text of the interview with Lester Holt here. This is Trump’s key admission: “And in fact when I decided to just do it [fire Comey,] I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.’”
This is a direct admission that he fired Comey because he wanted to end the Russian investigation. Of course, it is possible for a Trump defender to play semantics, but Trump is making the causal link here himself: When I decided to fire Comey, I was focused on stopping (or impeding) an FBI investigation that I don’t like.
Our legal system has never addressed this question: When the president is firing a law enforcement officer in order to end that officer’s investigation into his own administration, is that obstruction of justice? Of course, the president has the power to fire a law enforcement official, just like he has the power to drop a bomb on someone, but the power to act in one way generally does not make any intent to do that act “legal.” The president has the constitutional authority to order a raid, order lethal force, or issue immigration bans, but that does not insulate those acts from an inquiry into the motives behind those acts, and those motives can constitute felonies (or in the case of an immigration ban, intent can render the ban illegal/unconstitutional). But we have never had an impeachment trial for a president firing a law enforcement official, nor have we ever had litigation over it, so we are in uncharted territory.
If you want to know more about the history and meaning of impeachment for “high crimes and misdemeanors,” I would start with this conversation on Trumpcast between host Jacob Weisberg and law professor Noah Feldman. The bottom line is that the term “high crime and misdemeanors” in English law was broader than regular felonies. The term referred to political crimes like the abuse of power. Feldman explains: “There’s an instinct that it must be about crimes that are on the books, violations of statutes. That is exactly what it doesn’t mean, because the word high modifies both crimes and misdemeanors. High crimes and misdemeanors was a technical term that the Framers knew from procedures that the British used for impeachment, and high means governmental or in connection with, in our case, the presidency. High crimes and high misdemeanors are actions performed in an official capacity by a government official that violate the basic principles of the government and that therefore subject you to impeachment. They don’t have to be actual crimes that are on the statute books at all.”
Based on his research, Feldman suggested that Trump could be impeached for the “high crimes” of corruption, abuse of power, and undermining the rule of law. Trump admitted tonight to those crimes.
But let’s examine whether Trump arguably committed the felony of obstruction of justice under federal statutory law. Here is the most relevant statute:
18 U.S. Code Section 1505: Obstruction of proceeding before departments, agencies, and committees: “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 and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—Shall be fined under this title, imprisoned not more than 5 years ….”
To interpret this statute, I am relying on Charles Doyle’s publication for the Congressional Research Service. “The crime of obstruction of [such] proceedings has three essential elements. First, there must be a proceeding pending before a department or agency of the United States. Second, the defendant must be aware of the pending proceeding. Third, the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.” United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).
First, what is a proceeding? Courts have interpreted this term broadly. An investigation itself has been interpreted as a proceeding. United States v. Kelley, 36 F.3d 1118, 1127 (D.C.Cir. 1994). [Update: In Kelley, the D.C. Circuit notes that an investigation under Section 505 needs to be more than “a mere police investigation,” and it cites a case excluding an FBI investigation under this statute. Thus, more weight should go to the provision on an inquiry or investigation by Congress. Arguably, Trump dismissed Comey because of his past role in Congressional inquiries and his potential role.]
Second, Trump was obviously aware of the investigation.
Third, what is the requisite intent and what constitutes corruption? I quote Doyle: “In the case of either congressional or administrative proceedings, §1505 condemns only that misconduct which is intended to obstruct the administrative proceedings or the due and proper exercise of the power of inquiry. In order to overcome judicially-identified uncertainty as to the intent required, Congress added a definition of “corruptly” in 1996: “As used in §1505, the term ‘corruptly’ means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information,” 18 U.S.C. 1515(b). Examples of the type of conduct that have been found obstructive vary.”
Obviously, Doyle does not offer an example of “a president firing an official to end an investigation.” But Trump was acting an improper purpose, quite simply to obstruct the investigation, and thus, to obstruct justice.
Here is 18 U.S. Code Section 1503: “Whoever corruptly, or by threats or force, or by any threatening letter or communication, … endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection (b).” This provision is remarkably broad, and from what I’ve read, it has been applied broadly, but mainly it applies to interfering with judicial officials, rather than investigations. It would be fruitful to research just how broadly it applies to investigations.
[Update with thanks to Randall Eliason: 18 U.S.C. Section 1512(c)(2) may be a broader provision applicable here:
“(c)Whoever corruptly- (2)… obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
18 USC 1515 defines “official proceeding,” and includes Congress and authorized government agencies. ]
This post is an initial inquiry into the statutes and judicial interpretations, but more work obviously needs to be done. Specifically, I am researching how 18 U.S.C. Sections 1503 and 1505, two obstruction of justice provisions, have been applied to officials firing or otherwise retaliating against subordinates (for whistleblowing, investigating, or threatening to investigate the official’s conduct). That’s basically the case here, and a fair extension of Trump’s own admission. Any help is appreciated. All hands on deck.