Comey Counterarguments: The Trees, the Forest, and the Firing.

I’ve been reading the arguments that Comey’s written testimony does not show obstruction of justice here, here, here, and on Twitter off and on. For the most part, the arguments focus too narrowly on a particular event or claim. On some details, they are right: some statements and events are non-obstructive, even if improper, and a particular meeting Comey describes may be relatively innocuous. In fact, I don’t think the meetings, comments, or phone calls in Comey’s testimony are in themselves smoking guns or slam dunks of obstruction.

Nevertheless, these arguments focus on the trees to obscure the forest, and at the end of that forest is the decisive event of obstruction: Trump firing Comey. The Trump defenders ignore the totality of Trump’s contacts, and they don’t grasp that Comey’s testimony offers background for Trump’s intent to improperly influence and impede. Comey’s statement strengthens the case that his firing was the felony (and “high crime”) of obstruction of justice. My bottom line is that 1) one has to put all the events together — including their timing and frequency — to understand intent and context, 2) one needs to read the statutes (which make the attempt to influence with an improper purpose enough for obstruction), and 3) one should include Comey’s firing itself as part of the obstruction case.

The arguments against obstruction make a few fundamental errors. I have reviewed the statutes on obstruction of justice on this blog here and here. It’s important that when Cogress required proof of “corrupt” influence or obstruction, it defined corruption broadly to mean “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). The two big questions are: 1) Did Trump intend to influence or impede the investigation? And 2) What constitutes evidence of an improper purpose?

1. First, Comey’s testimony lays out a timeline that corresponds directly to events in which Trump and his staff learned of an investigation gaining steam and having hard evidence of wrongdoing by that staff. We learned new details of that timeline today, and it’s a powerful argument for intent and improper purpose: On Jan. 27, Yates met with McGahn about Flynn, and at noon, Trump called Comey to have dinner together to ask for loyalty; Feb. 14, Flynn resigned and Trump called Comey to “let it go”; March 30, Trump complained to Comey about his Congressional testimony and asked him “to lift the cloud.” (Don’t forget the end of the timeline, not in the testimony, that his firing came immediately after he asked the DOJ to increase his resources for the Russia investigation.) As the investigation moved forward, Trump intervened to influence and impede. Trump’s defenders isolate events out of this context of the overall investigation, and doing so obscures a clear picture of Trump’s awareness of the investigation and his intent.
2. This timeline addresses one particularly specious argument: “If Trump thought the Russian investigation was a wild goose chase, [it was] not corrupt of him to try to persuade Comey to drop it.” (See James Suroweicki on Twitter). Again, the timeline and the hard evidence against Flynn undercut this hypothetical: there is no way to allow for a good faith belief that the Flynn investigation was a wild goose chase. In fact, as the investigation grew stronger, Trump increased his contacts with Comey.   Moreover, the statutes offer no exception based on the merits of the investigation, and it would be absurd to allow an actor to avoid obstruction charges by defining “proper” or “improper” based on a subjective and self-interested interpretation. Even if it turns out that there is no underlying crime, it is still obstruction of justice to thwart an investigation. And given uncertainty, how do we know if no underlying crime is discovered precisely because the obstruction was successful in delaying, impeding, and undermining an investigation?
3. Some of the arguments suggest that Comey did not feel influenced or pressured by Trump. Comey’s feelings are not relevant. The questions under federal law are A) the actor’s intent, regardless of effect, and B) obstruction statutes include attempt, which also does not depend on any effect.  Comey’s testimony suggests repeated intent and attempt to obstruct. (18 U.S.C. 1505 criminalizes “endeavors” to influence, and 1512(c)(2) criminalizes “attempts” to influence an investigation).
4. Some of the arguments suggest that Trump’s comments are “grossly inappropriate” but fall short of obstruction. Those arguments separate the comments from the ultimate firing. My contention is that Trump firing Comey is arguably the obstruction of justice. The question is why Trump fired Comey, and the grossly inappropriate comments are evidence of improper intent (the definition of “corrupt”) under the federal statutes and case law. I’ve seen Trump’s defenders argue again and again that because Trump has the power to fire any FBI director, then the firing itself can’t be improper. That’s a fundamental error of law. Just because someone has the power to do something does not mean the exercise of that power is always lawful. The president has the power to order a military strike, but what if he orders that military strike in order to kill his wife’s lover? Someone with incriminating evidence against the president? To commit a war crime? The existence of other laws sets the limits on presidential power, based on intent. Even if Trump generally had the power to fire Comey, if his intent was to impede the Russia investigation, Trump used that power illegally. If one concedes that the contacts were repeatedly grossly inappropriate, then the ultimate firing must be seen in light of those improper contacts, which are evidence of an improper purpose.
5. It seems to me that Trump’s defenders are using Comey’s attention to detail against Comey (or at least against the obstruction charge). Not every event in his testimony is incriminating or even inappropriate. Trump’s defenders highlight those good “trees” to obscure the forest. The Jan. 6 briefing was innocuous. Comey records that Trump told him on March 30, “that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out.” Indeed, that sounds like encouraging some kind of investigation, but in context, it’s clear that Trump was deflcting attention from Flynn and more central figures. The continuation of the call shows Trump’s broader purpose was to influence the investigation: he “also contined to say but that he hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.”  It’s absurd to interpret this phone call as a pro-investigation contact. And those are the most favorable details for Trump’s side as non-obstruction. The rest of the contacts are explicit attempts to influence, and to do so with an improper purpose.
6. One argument seems too silly to even repeat, but I’ve heard it repeated so often as noise, it demands a mention. Yes, it turns out that Comey did tell Trump two or three times that he was not personally being investigated, and that confirms some of Trump’s claims. Some of Trump’s defenders say that Trump could not obstruct justice if he was not personally being investigated. Laughable. Someone can obstruct the investigation of another for many improper reasons (to protect onself, to protect a friend, to avoid scandal around one’s administration). And it is meaningless that Trump was not (yet) a target of the investigation. We only entertain this argument  because we assume Trump’s ignorance of the legal system. Some defenders seem to focus simply on the fact that this part of Comey’s testimony lines up with a part of Trump’s. It’s like arguing a murderer is exonerated because he claimed to be wearing a red tie, and the police report confirms that he was wearing a red tie.

Again, I don’t think there is any one meeting, comment, or phone call in Comey’s testimony that is in itself a smoking gun/slam dunk of obstruction. Trump firing of Comey as the decisive act of obstruction. If Trump had not fired Comey, I don’t think these contacts taken together would be enough for a prosecution. But there is a separate question: impeachment is not the same as a regular prosecution. I have written before that “High crimes and misdemeanors” are not the same as regular felonies and misdemeanors. The English used this phrase for political abuses of power, and the American founders explicitly adopted the same phrase for the same broader purpose. This aspect of impeachment cuts both ways: The House and Senate do not need articles of impeachment that are limted to the law on the books. One can look at these facts and identify a clear abuse of power.  These facts are strikingly similar the articles of impeachment against Nixon.

But at the same time, Watergate is an important lesson about the politics and precedent of impeachment. Watergate started with a clear crime (the break-in), and then proceeded with finding a smoking gun of a cover-up. The Trump/Russia affair is so far a reverse Watergate: a relatively clear cover-up/obstruction, without hard proof of concrete crimes by anyone in the Trump administration. Failure to disclose contacts is not politically the same thing as a crime. I could be persuaded that the Comey firing combined with other abuses of power are impeachable, but I don’t agree that impeachment should be rushed. We have not reached a legitimacy threshold or consensus yet. My view is that impeachment proceedings just on the Comey events are premature until we know more about the underlying events. And that will take more time, patience, and openmindedness on both sides.

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor and Joseph Lipsitt Scholar at Boston University School of Law. He was at Fordham Law School 2013-2022. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century. View all posts by Jed Shugerman