Did Comey violate any rules by revealing his memos?

As far as I have read, the arguments that Comey violated laws in revealing his memos to Professor Dan Richman or to the press are remarkably weak.  I am chiefly responding to Trump counsel Mark Kasowitz’s letter and Jonathan Turley’s post. The bottom line is that there’s nothing to these arguments.  It’s a legal error to keep referring to Comey’s conduct as “leaking” unless one can establish that any of the information was classified or secret. The word “leak” might seem broad, but it has a specific meaning. It’s not revealing uncomfortable details if those details were not legally established as secret.

  1. Let’s start with the ambiguous suggestion that the conversations were privileged. It’s striking that Kasowitz never specified which privilege in his letter, but if he’s referring to executive privilege, then Trump clearly waived that privilege. Trump first referred to those particular conversations in the public statement on firing Comey on May 9th. Then he tweeted about tapes the next day. By referring publicly to their conversations and this content, he waived his claim for privilege and secrecy of those exchanges. Moreover, the Trump administration did not invoke the privilege before today, so they are trying to slam the door on the barn after the horse has already run away, as they say. It’s not only a practical problem, it’s also a legal problem. Courts are not going to take this claim seriously when the President had notice of the testimony and did nothing at the appropriate time. It’s just an empty “make-weight” argument. It’s legal noise without substance.  Moreover, executive privilege is not absolute. The Supreme Court in U.S. v. Nixon, the major Watergate case, held that executive privilege must be balanced with the public right to know. The Court rejected Nixon’s argument that he had an “absolute, unqualified Presidential privilege of immunity.” Even if Trump had asserted the privilege earlier, a court would have followed U.S. v. Nixon and find that the public interest outweighs the interests of the executive. And that’s why the administration never asserted the privilege in time: they knew it was a lose-lose situation.

2. Was Comey’s memo classified or did it contain any classified information? Comey himself said that he wrote these memos deliberately to avoid being classified, so he never included any classified information. He carefully gave written and live testimony to avoid divulging classified information.

3. Jonathan Turley suggests that Comey’s memo looks like an FBI “Field 302 form” as part of an investigation, and thus would become an official FBI record. A Field 302 form really is a form, not surprisingly. First, it would be odd for Comey to focus so deliberately on avoiding classified information, but somehow would turn his memo into a form that would limit his use of it. Second, the Trump administration keeps holding on to the fact that Comey had told Trump that he was not personally under investigation, so it’s odd to suggest that Comey’s memo of conversations is actually part of a personal investigation. Can they claim it was informally part of the investigation of others? That seems to be a stretch. One can take notes of conversations and retain his personal possession of those notes, even if they are written on an FBI laptop.

4. Turley suggests Comey violated 18 U.S.C. 641, a statute covering embezzlement, theft, and misuse of government property and records. The statute says: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority … conveys … any record … of the United States or of any department or agency thereof… shall be fined… or imprisoned…”

Turley is suggesting that Comey’s memos are official government records or exclusively government property. There’s no clear legal argument for that position. But even if it were a government record, I haven’t read anything that suggests this statute would apply. This article by David Berry, counsel to the NLRB, explains that the statute was based upon the common law crimes of larceny and conversion, and nothing is Berry’s description of the statute’s use seems to fit this case. Moreover, Berry explains that First Amendment values are a check on applying this statute too broadly as a chill on free speech.

5. Turley implies that the memo is covered by the Privacy Act, but again, the memo is not an official government record, nor does it include any information covered by the Privacy Act, as far as I have read. Turley also suggests the memo must be kept undisclosed under FBI policy, but I didn’t see any specific FBI policy addressing personal memoranda or notes. I’d like to see more specifics on this assertion.

6. Turley suggests that the FBI director had signed a non-disclosure agreement. That would be news. The FBI has internal rules, but is there any evidence of separate non-disclosure agreements? This seems speculative and unlikely.

The threat to discipline Comey for disclosing his own notes so far seems to meritless, and the filing of complaints against Comey could constitute “abuse of process.”


The Comey Hearing: Lots of big news (No GOP attack dogs; Lynch, Sessions, Rosenstein in trouble; McCain’s health)

  1. Nothing today changes my interpretation yesterday of the Comey timeline: taken all together WITH the firing, it constitutes obstruction of justice, but not a clear enough case for impeachment yet, especially in political terms. There are only minor additions from the testimony: When Trump said “I hope you can let it go,” Comey explained the tone: it felt like a directive. Comey also gave more context to the McCabe exchange as a hint of a quid-pro-quo. There’s more detail and context, but I don’t think that’s the biggest news of the day, other than putting a credible face and strong voice on TV with his powerful written statement from yesterday.
  2. My biggest question going into these hearings was: How seriously are the Republicans taking this inquiry?  The republic depends upon the Repubicans in Congress, and especially the Senate Intelligence Committee.  I’m not saying that Republicans were actively building a case for a prosecutor or impeachment, but I can’t emphasize enough how significant it is that none of the committee’s Republicans pressed any  attack on Comey’s character, motives, or credibility (other than McCain, more on that below). None of them were willing to play the attack dog role (see Arlen Specter from the Clarence Thomas-Anita Hill hearings). Their defense of Trump was relatively tepid, and I thought their questions were fair.  I think it’s a very positive sign that the committee will continue to investigate and work together — with Comey-ty? (Sorry!).  And there are strong signs that the inquiry will expand to other major players (more on that below, too.)

3a. Loretta Lynch, say it ain’t so. I can’t stand by my earlier criticism that the GOP was asking about Clinton email to distract from the Trump questions. They may have intended to change the subject, but they found a real subject to investigate further. Comey revealed Loretta Lynch pressured Comey to use the word “matter”, not investigation, was a huge mistake, a partisan intrusion, and probably changed history by making Comey more skeptical about her and the Clintons’ role. I inferred that it had an effect on Comey that may have changed how he handled the investigation later. She will face very tough questions. And it validates the follow-up questions on the Clinton campaign on their handling the email. We will hear a lot about this. It does not rise to obstruction, because it was wording/semantic, not the substance of investigation, but Comey was right to be troubled. Lynch and Bill Clinton should be called to testify and explain their behavior. What’s obstruction for the goose is osbstruction for the gander.

3b. But Comey re-emphasized that he was confident there was no underlying crime, and appointing an independent counsel would have been “brutally unfair.” He was wise to clarify that point.

4. McCain was incoherent and confused today, and he seemed off yesterday, too. He seemed to imply that the Clinton campaign could have been colluding with Russia, but he didn’t clarify this point. He mixed up names (Comey/Trump) and words several times. He claimed to see inconsistency with how Comey closed the Clinton case, but wouldn’t close the Trump/Russia case, but that claim is incoherent, too. I think it’s fair to attribute McCain’s conduct today to illness, not ill intent.

5. Comey repeatedly said he could not address questions about Attorney General Sessions because of the on-going investigation. Comey answered, “I was aware of facts” about Sessions’s Russia contacts that meant he didn’t go to Sessions in this matter. Comey confirms that Sessions is a possible target of the Mueller investigation. That’s not a surprise, but it underscores how this investigation is getting broader and closer to Trump. Sessions’s failure to follow up on his recusal is another big question about his own obstruction of justice in his case, as he participated in the firing.
6. Rod Rosenstein will face his own questions. Comey told Rosenstein about his concerns with Trump’s conduct (which should have raised red flags).  And yet Rosenstein still wrote the memo justifying his firing. Rosenstein may face fair questions about his possible participation in obstruction of justice.

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.


Seven Reactions to Today’s Coats/Rogers Testimony

I watched the Coats/Rogers/Rosenstein/McCabe testimony before the Senate Intelligence Committee live today. Even though the testimony provided no direct answers, that’s exactly why it was so significant. The news is what did NOT happen.

  1. When asked directly and repeatedly about whether Trump asked them to influence the Comey investigation into Russia, they had clearly rehearsed a way to avoid answering the question. They said, “We have never felt pressure.” That’s not an answer to the question, and deliberately so. They could have answered, “No, the President never asked.” Instead, they answered a completely different question, and of course, their answer matches up nicely with presenting an image of their toughness, professionalism, and independence. It is most definitely not an answer to the Senators’ questions of what Trump asked or attempted to do. This morning’s non-denials were the biggest tell and a signal to watch for more.
  2. Asked repeatedly for a legal basis for refusing to answer, none of the four provided even a weak legal argument. They acknowledge that their refusal did not have a legal basis. None of the four asserted executive privilege, and the White House never gave them an answer about executive privilege, which is stunning. The President through White House counsel needs to authorize an executive official to claim executive privilege, and that clearly did not happen. Coats etc. said they never heard back from the White House one way or the other, which is amazing but not surprising. It’s chaos, and White House counsel McGahn is already up to his neck in legal trouble himself over Flynn.
  3. What if Trump and McGahn change their minds and invoke executive privilege? Thanks to Sens. Warner, Wyden, and King for repeating questions, Coats and Roges seemed to give enough answers to have waived executive privilege permanently (thanks particularly to Sen. Angus King!). The Democrats changed their questions enough to ask generally about Trump’s questions, and Coats answered just enough to open the door to a waiver argument. If they wanted a strong argument for executive privilege, it should have been granted/invoked at the beginning of the session today.
  4. Instead of invoking privilege, Coats and Rogers focused on “confidentiality” and even more on the “inappropriateness” of answering questions in an open session. There is no legal claim of confidentiality here that could supercede Congress’s duty and power to supervise and ask. The only legal argument relating to confidentiality would be the executive privilege claim that they explicitly refused to invoke. The bottom line for Coats was that it would be more appropriate to answer the questions in a closed session, and they seemed to agree to answer those questions in this afternoon’s closed Intelligence Committee session. We won’t know the answers directly, but from the tenor of today’s session, the Democrats and some Republicans (Sen. Burr in particular) will not tolerate stonewalling in the closed session after this morning’s answers. And in any event, Coats seemed to unwilling to dispute the Washington Post story in public, which means he is unwilling to be a good Trump foot soldier. Coats has a solid reputation, and I’m inferring that he is going to answer questions honestly, both this afternoon and when interviewed by Mueller.
  5. As for the half-hearted arguments, mostly from Rosenstein and McCabe, that they could not answer questions about Comey because of the Mueller inquiry, those arguments are not solidly supported by historical practice. Watergate and Iran Contra had simultaneous investigations by Congress and special prosecutors, and yet those witnesses did not refuse to answer Congressional questions with the excuse of a parallel criminal inquiry. Perhaps the proper compromise here is that the witnesses must answer Congress’s questions, but in closed session out of respect for the special counsel’s investigation. But the Senators showed that they are not going to tolerate less than that.
  6. Senator Burr, the chair of the committee, was remarkably tough on the witnesses and their lack of cooperation in his closing statement on the session. This is one of the best signs of the day. He told them he is not going to tolerate further stonewalling, and he embraced Congress’s role as an equal branch, a check on the executive, and their power to have their questions answered. I am very pleasantly surprised by Sen. Burr’s leadership today and over the past two months. He could be the surprise statesman. Unfortunately, his less balanced reaction to Sen. Harris — interrupting her when he allowed other Senators to interrupt witnesses — marred his day. It was a gray area of how much interrupting to tolerate, but Burr did not treat all interrupters equally today.
  7. Sen. McCain’s presence at the hearing was very unusual. He is not a member of the Intelligence Committee, and the story is that he asked to join. The speculation was that he had a purpose to be there, to push harder on the Trump/Russia story, and it would be a sign of Republicans on the committee being open to such a pushback against Trump by allowing McCain to be there for such a role.  McCain started strong, then seemed unfocused, and then attacked leaks more than asking tough questions. I’m still going to suggest that McCain didn’t totally whiff, but is playing an active but not pugnacious role. Perhaps he understood his role as a guest of the committee, and also read the signals of Coats (his old friend from their Senate days together) than Coats would be more comfortable in the closed session. Maybe I am being naive, but McCain’s presence is a signal that he is increasing an active role as a check on Trump, and a signal that the Republicans on the Intelligence Committee are open to him playing that role. This could get more and more interesting even before tomorrow’s Comey testimony if Coats reveals more in the closed session.

“Obstruction of Justice”: Trump, Comey, and the law

I am updating my original post on obstruction of justice in the wake of a series of new stories tonight and anticipating Comey’s testimony on Thursday.

One can argue that the combination of these allegations constitutes obstruction of justice under federal statutes: 18 U.S.C. Sections 1503, 1505, and 1512(c)(2).

Let’s first review the evidence and new allegations.

  1. On May 11, in an interview with Lester Holt here, this was 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.’”  

2. From the official transcript of Trump’s meeting with Kislyak and Lavrov: “I just fired the head of the F.B.I. He was crazy, a real nut job… I faced great pressure because of Russia. That’s taken off.” 

3. Comey is expected to document Trump’s pressure to end the Russia investigation on Thursday. And we have the following stories tonight:

4. Comey telling Sessions not to leave him alone with Trump, because he knew Trump would be interfering with FBI independence.

5. Trump allegedly clearing the room so he could ask Coats and Pompeo to get Comey to back off of the Russia investigation.

6. There also is an old story of trying to manipulate U.S. intelligence officers to support his false accusation that Obama wire-tapped Trump Tower, which also could constitute obstruction of justice.

The problem is that our legal system has never addressed a president firing a law enforcement officer in order to end that officer’s investigation into his own administration.

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). Moreover, a president has the power to de-classify intelligence (see the Lavrov/Kislyak meeting), but what if he was acting as part of a quid-pro-quo bribe? Or as part of blackmail to keep past crimes secret? Again, having the power to act does not mean immunity from illegal inent in acting.

Here are three relevant statutes:

18 U.S.C. Section 1512(c)(2) is the broadest provision (with thanks  to Randall Eliason):

“(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. The question is whether a formal FBI investigation is an official proceeding, and courts are divided. The 9th Circuit held that they are not, but also acknowledged that the 5th and 2d Circuits have held that they are official proceedings. United States v. Ermonian, 727 F.3d 894, 898-902 (9th Cir. 2013), United States v. Ramos, 537 F.3d 439 (5th Cir. 2008), United States v. Gonzalez, 922 F.2d 1044 (2d Cir. 1991).

The bottom line seems to be whether the defendant acted obstructively when foreseeing a proceeding, or if the obstruction would probably lead to interference with the administration of justice. To interpret this statute, I am relying on Charles Doyle’s publication for the Congressional Research Service.

Recently the Fifth Circuit has held that, “Though a proceeding need not be actually pending at the time of the obstructive act, an obstruction of justice conviction requires some nexus between the obstructive act and some official government proceeding. A proceeding must at least be foreseen, such that the defendant has in contemplation some particular official proceeding in which the destroyed evidence might be material.” United States v. Simpson, 741 F.3d 539, 552 (5th Cir. 2014).

The 11th Circuit observed a trial court’s instruction to the jury that an element of obstruction can be merely that “the natural and probable effect of the defendant’s conduct would be the interference with the due administration of justice.” United States v. Townsend, 630 F.3d 1003, 1015 n. 8 (11th Cir. 2011).

See also United States v. Burge, 711 F.3d 803, 808-10 (7th Cir. 2013); United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009); United States v. Desposito, 704 F.3d 221, 230-31 (2d Cir. 2013); United States v. Ahrensfield, 698 F.3d 1310, 1324 (10th Cir. 2012).

One observation: Though the text of 1512(c)(2) is broad, 1512(c)(1) applies more narrowly to destruction of evidence. It is possible to read the second part more narrowly in light of the first part as a matter of structural interpretation, but that’s not limited by a closer textual interpretation.

Beyond 1512(c)(2), there are two other statutes that may apply, but courts have often applied them more narrowly than in this case.

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 ….”

Again, 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). 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.

Please note that impeachment is not limited to statutory crimes, but draws from a technical English legal term for political abuses. Many Founders are on the record explaining that “High Crimes and Misdemeanors” is about political abuse of power, rather than statutory felonies.

Nevertheless, the politics of impeachment are stronger if one can identify a concrete statutory felony, so that the high crime is also a regular crime on the books. If it’s less subjectively political, the more persuasive it is to the public and the GOP.

The other political problem is that we have a reverse Watergate. In Watergate, the underlying crime was clear, but the President’s role was unclear (and it turned out that the only proven role was the cover-up).  Here, we have a signs of a cover-up/obstruction, but not yet proof of the underlying crime. Legally, Trump can be convicted for obstruction even if there was no merit to the accusation. But politically, it is a problem. So it is politically important, if not legally necessary, to find some kind of collusion or glaringly illegal act by Flynn, Kushner, Manafort, Page, etc. I suspect those crimes will come to light, even if Donald Trump did not commit them himself.

Kushner/Flynn/Russia Timeline: The Russian Oil Mega-deal

As the details of Kushner’s and Flynn’s activities emerge, I’ve been reading about a key event that has gone unnoticed that connects the dots: “The Largest Oil Deal in Russian History,” a deal risked by the West’s sanctions on Russia, and which occurred in the middle of the key Kushner/Flynn/Russia events (right in between Kushner’s potential espionage proposal for a secret direct link to the Kremlin through the Russia embassy and Kushner’s meeting with Putin’s banker/confidant). A timeline connects the dots below, including the possibility that this “19% of Rosneftgaz” deal in December is actually the same “19% of Rosneftgaz” deal that the MI6 agent’s dossier alleges was part of a Russian deal with Carter Page, and it may be getting transferred through shady channels to unknown new stakeholders…

Here are links to the stories on this shady megadeal between Qatar and Russia on Dec. 9:

“Russian state holding company Rosneftegaz on Saturday signed a deal with the Qatar Investment Authority and commodities trader Glencore to sell a 19.5 percent stake in state-owned oil major Rosneft, Rosneft said. The privatization deal, which Rosneft Chief Executive Igor Sechin called the largest in Russia’s history, was announced by Rosneft in a meeting with President Vladimir Putin on Wednesday. Its success suggests the lure of taking a share in one of the world’s biggest oil companies outweighs the risks associated with Western sanctions imposed on Russia over the conflict in Ukraine. Rosneft had been under pressure to secure a sale of the 19.5 percent stake to help replenish state coffers, hit by an economic slowdown driven by weak oil prices and exacerbated by sanctions.”

More recent reports have focused on the shadiness of the deal and its subsequent transactions: “More than a month after Russia announced one of its biggest privatizations since the 1990s, selling a 19.5 percent stake in its giant oil company Rosneft, it still isn’t possible to determine from public records the full identities of those who bought it. The stake was sold for €10.2 billion to a Singapore investment vehicle that Rosneft said was a 50/50 joint venture between Qatar and the Swiss oil trading firm Glencore.”

The Dec. 9th deal falls in the middle of the shadiest events in the Kushner/Flynn/Kislyak timeline, which connects the dots on a mix of known illegal non-disclosures, corruption, potential espionage, and Logan Act violations. They certainly explain why Kushner advised Trump to fire Comey (obstruction of justice).

Dec. 1: Just 8 days before this oil mega-deal, Flynn & Kushner met Ambassador Kislyak at Trump Tower, and proposed secret communication link with the Kremlin through the Russian Embassy. The parties admit that the idea was to avoid any detection of these communications by U.S. authorities.

Dec. 9: The Largest Oil Deal in Russian History

Dec. 13: At Kislyak’s urging, Kushner meets Gorkov, who chairs Russia’s government-owned VE Bank and is Putin’s close confidante. Journalists describe VE Bank (VEB) as Putin’s slushfund, a source of money independent from official Russia budgeting. VE Bank is under strict US sanctions.  Here is good commentary on these events.

Dec. 14: Gorkov immediately flies to Japan to meet with Putin.

Dec. 29, Obama orders new Russian sanctions for election hacking and interference. On the same day: Flynn calls Kislyak five times about Russian sanctions. Trump tweets to Putin, calling him “very smart” for not responding, effectively saying, “Don’t worry, I’ve got your back.”

Jan. 4: Flynn reveals to Don McGahn, chief attorney for the transition effort, that he’s under FBI investigation. (He is still appointed and receives security clearance, and he resigns on Feb. 13, long after Sally Yates reveals incriminating details about Flynn on Jan. 26-30).

Jan. 9: Trump transition team announces that Kushner will join the administration as a senior adviser.

Jan. 15: Pence denies that Flynn and Kislyak discussed sanctions.

Jan. 18: Kushner applies for top-secret security clearance, omitting many meetings with foreign officials, including the relevant ones with Kislyak and Gorkov in December. Those omissions are potentially criminal, from my reading of security experts.

I add two more stories for context. The first is from the alleged MI6 dossier on Trump, with the caveat that the dossier has not been verified:

“A dossier with unverified claims about President Donald Trump’s ties to Russia contained allegations that Igor Sechin, the CEO of Russia’s state oil company, offered former Trump ally Carter Page and his associates the brokerage of a 19% stake in the company in exchange for the lifting of US sanctions on Russia.”

I’m reading more about how the two Rosneft sales may have been related. Was there an initial negotiation with the Trump campaign for the Rosneft stake, as the dossier claims? It just happened to be 19% in the alleged dossier, the same number in the December deal (19.5%!).  And did that turn into the December Qatar deal, which in turn was laundered into a deal for Trump Associates, through a Singapore firm? Was Kushner negotiating that deal? Lots of shell companies and the Cayman Islands are involved, perhaps as a way to hide the beneficiaries.

And everyone should listed to this TrumpCast (Slate’s chair and host Jacob Weisberg) interviewing Tim O’Brien of Bloomber Business News. O’Brien explains how, 10 years ago, a 26-year-old Jared Kushner made a terrible bet on Manhattan real estate. His father had just been released from prison, and Jared had taken over the family real estate business. He was looking to make a big splash, so he sold off his family’s holdings in New Jersey in order to purchase a huge building in midtown Manhattan (666 5th Ave., I am not making that up) for $1.8 billion. It was 2007, the peak before the crash. Suddenly, Jared had a financial disaster on his hands. He negotiated a deal to save the project from bankruptcy with a 10-year loan, but the creditors were set to call in their debts in 2017 or 2018.  About a year ago, Kushner had a deal with a Chinese bank in place to re-structure the deal with a huge windfall of $500 million, but journalists at Bloomberg found out, and their story blew the deal (because it was a corrupt deal). And once again, Kushner’s real estate business is heading towards disaster… unless he can find another authoritarian state bank to bail him out.

Guess what happens next? O’Brien explains that Kislyak arranged this December meeting between Kushner and Gorkov (the chair of the Putin-affiliated Russia bank VEB).

Here is Josh Marshall’s view (and chart) from last week, without taking note the oil mega-deal:

“This chart, let me be clear, is not a statement of fact. It is an effort to illustrate a series of patterns which are the subject, the subtext, of many of the reports about the Trump/Russia story and indeed the investigation. It looks at what each side wants, what each side seems to be getting. President Trump’s efforts to destabilize NATO and the EU are the most clear. These things are happening. The election hacking and subversion did happen. We know the Trump Organization has taken vast sums of money from Russia and other parts of the former Soviet Union over the last twenty years. Whether there’s any explicit quid quo pro today is what we don’t know. When people talk about collusion, this is the pattern of actions they’re looking at and trying to confirm.”


Today, Bloomberg reports that the Kushners are buried in debt to Chinese lenders on a New Jersey deal. I had no idea about this other financial crisis. Like father, like father-in-law, like son. The Kushners and Trumps are all criminal fraudster/bankruptcy artists, just looking desperately to sell out the US for billlions in return for personal millions.

And NBC is following up on this story on the linke between Kushner’s 666 5th Ave. real estate disaster and potentially using the “backchannel” to find a Russian banker to bail him out.

Let me add a point/counterpoint. A friend pointed out that the 19.5% in both the dossier’s Russia/Carter Page deal and the Qatar Dec.9 deal might not be directly connected, because there may be a 20% legal threshold rule for reporting financing and investors. But the fact that each of these deals is under that 20% threshold suggests that the dealmakers are unusually focused on secrecy, so that it dictates the scope of the deal.

George Washington’s secret land deal actually strengthens CREW’s Emoluments claim [Updated]

[Update on June 20: In his original SSRN draft, Tillman did not include evidence that the auction was publicized. On June 16, 2017, Tillman filed an amicus brief that offers evidence that the auction was advertised in advance and was public, although it is still unclear from the footnotes and sources cited if there were any newspaper coverage of Washington’s purchases at the auction. It is possible that Washington himself was confused about whether the acquisition of land, as opposed to a payment, could be an emolument. Or perhaps he was being conveniently selective or forgetful about the emoluments clause.]