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Analysis: The Case against Donald Trump

POSTED: May 12, 2017, 7:00 am

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Screenshot of NBC News interview with President Trump on May 11, 2017

Until this week, discussions of impeachment surrounding President Donald Trump were mere intellectual discussions or wishful thinking. With the firing of FBI Director James Comey, the discussion of impeachment is now rooted in fact. The actions of the Trump Administration are nothing short of stunning. Americans should be outraged, for as much as some of our representatives on Capitol Hill want to downplay the significance of this moment, we do stand on the precipice of a constitutional crisis.

The Comey firing shows much more than bad judgment. It is not simply a matter of bad timing. When viewed objectively, it is a deliberate act to change the course of the investigation into possible Russian collusion with the Trump campaign and administration. And what we must come to grips with is the fact that any attempt to interfere with and impede a congressional investigation runs afoul of federal criminal statutes.

While many seem timid to call the firing of James Comey criminal, there is more than ample evidence that the President and the Attorney General engaged in the obstruction of justice. The actions which constitute obstruction of justice are set forth in the United States Code, specifically 18 USC 1505, titled Obstruction of Proceedings before departments, agencies and committees. It reads as follows:

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.

Let’s start with the initial indisputable proposition that James Comey, as head of the FBI, was tasked with leading an investigation, the results of which were to be provided to a committee of Congress probing possible election tampering by the Russians. This is indisputable and supports the first element of obstruction.

By way of background, Comey was abruptly fired on May 9, 2017. He was given no advance warning, written or verbal, and was in Los Angeles meeting with FBI employees when the news of his demised flashed across television screens. Apparently, few of the members of the administration knew that President Trump was firing the director and senior officials in the FBI had not been advised.

Three pieces of correspondence are significant to this matter: a memo from Deputy Attorney General Rod Rosenstein to Attorney General Jeff Sessions titled, “Restoring Confidence in the FBI,” a cover letter from Attorney General Sessions to President Trump related to the Rosenstein memo and recommending the firing of Comey, and a letter prepared by the president dismissing Comey and stating that Comey advised him that he was not under investigation.

The actions taken by James Comey as FBI Director relative to the Clinton email scandal are well known and were widely panned. The refusal to prosecute Clinton was disturbing to Republicans and Trump’s operatives during the presidential campaign, while the announcement of the reopening of the email investigation on the eve of the election was supported by them. Conversely, the decision not to prosecute Clinton was celebrated by Democrats but the election eve announcement was infuriating to her supporters. Despite the different sentiments of the opposing camps, no action had been taken against Comey for his conduct up until May 9, 2017.

It was reported in the Los Angeles Times that according to two officials, Comey met with Deputy Attorney General Rosenstein to advise him of the need of additional resources for an expansion of the investigation of possible Russian meddling in the presidential election. The Justice Department had denied any such meeting, but Comey took the additional step of advising several senators that the meeting had taken place and that he had made the request. This strongly supports Comey’s assertion that the request was made. In any case, this meeting is the key to determining if the case for obstruction exists. If the request was made, and we have no reason to suggest it wasn’t, then it would be important to substantiating an obstruction charge.

It can be reasonably assumed that Deputy Attorney General Rosenstein went to his superior, Attorney General Jeff Sessions, and told him the specifics what Comey requested. Whether or not this is accurate, at some point Sessions was clearly brought into the determination of Comey’s status. Sessions, however, had no business being involved in any decisions related to the investigation of Russian influence.

Recall that Sessions was a primary Trump campaign supporter and advocate. Remember that the same Jeff Sessions had meetings with Russian operatives during the campaign. And remember that Jeff Sessions ostensibly lied to Congress when he said that he never met with Russian officials during the campaign. If proven that he lied under oath, Sessions would be subject to perjury. The accusations of lying along with his close relationship to the Trump campaign caused Sessions to publicly announce that he was recusing himself from all matters dealing with the investigation of Trump ties to Russia.

So, what did Sessions do when faced with these legal and ethical challenges? He reinserted himself into the investigation, engaged in discussions with the Deputy Attorney General and the President, penned and signed the cover letter for the Rosenstein memo and most importantly, recommended the firing of James Comey.

The Case for Obstruction Against Jeff Sessions

Here is where it gets problematic for Sessions. Recusal means that the individual removes or disqualifies himself from participation in the matter due to a conflict of interest. If Sessions is recused, he has absolutely no business being involved in any decisions related to the Russia investigation. There is no such thing as a partial recusal. Either you are in or you are out. Since Sessions’ actions are also under investigation, he has an interest in how the investigation is conducted and the outcome of the investigation. Sessions inserted himself into a matter where he initially recused himself and where he has legal jeopardy. Sessions actively participated in the termination of the man overseeing the investigation of his conduct. No one has credibly suggested an emergent threat posed by Comey’s continued leading of the Bureau. But the expansion of the investigation as requested by Comey signaled an imminent change. It was a racheting up of the investigation and represented a significant threat to Sessions’ personal interests.

There are simply three elements to be proven under the “omnibus clause” of 18 USC 1505, the obstruction of justice statute; 1) there must be a .qualified proceeding; in this instance the House investigation 2) the individual must know about the proceeding; and 3) the individual must act “corruptly” with the intent to obstruct or impede the proceeding in its administration of justice. Under current case law, it does not matter if the effort to impede actually succeeds, only that some measure of obstruction must be foreseeable. Finally, even when an attorney such as the Attorney General, engages in traditional legal actions, he can be charged if the “motive” is to obstruct. Motive is not necessarily proved by statements by all of the attendant actions an individual undertakes. In other words, it’s not what he says, it’s what he does.

Sessions’ actions in light of the knowledge that the investigation was about to be expanded can easily be interpreted as an attempt to influence, obstruct or impede the investigation. In fact, it strains reason to view it any other way.

The Case for Obstruction against President Donald Trump

This brings us to the case against President Donald Trump. The president was well aware of FBI Director Comey’s actions relating to the Clinton emails prior to his election. He was not only aware, but was enthusiastically supportive of reopening of the Clinton email investigation days prior to the election. It is now reported that Trump became enraged at Comey’s testimony before Congress last week. Trump is reported to have sought advance transcripts of the FBI Director’s testimony prior to his appearance before Congress, but that request was rejected by Comey.

There was no legitimate reason to remove James Comey as the head of the FBI when the President removed him. His tenure posed no imminent threat to the operation and function of the Bureau. The Rosenstein letter, while replete with the opinions of other attorneys, only related to pre-election conduct and is not credible in justifying the need for Comey’s immediate termination. In short, nothing significant changed in Comey’s conduct relative to heading the FBI from January 20, 2017 the day of the president’s inauguration, to May 9, 2017. The Trump administration has argued that Comey lost the support of FBI personnel. This assertion, however, was directly contradicted by Acting FBI Director Andrew McCabe, in testimony before the Senate Intelligence Committee on Thursday. McCabe denied the rank and file members of the FBI had lost confidence in Comey and indicated that the former director enjoyed broad support during his tenure and in the aftermath of his dismissal.

The real issue is what changed concerning Comey in the mind of the president?

There was one very significant change over the last week in the investigation of possible election tampering by the Russians in collusion with the Trump campaign. Comey was now seeking money and resources to expand the investigation. As with Sessions, the investigation into Trump’s activities could have significant negative consequences for the President. It could lead to his impeachment and removal. Even worse, it could lead to criminal charges. As such, President Trump had more than sufficient motive to obstruct Comey’s investigation.

For President Trump, however, the evidence of his motives seems clearer. First, despite earlier reports, it now appears that Trump, not Rosenstein, was the impetus for the letter used to justify termination. It is now widely reported that following Comey’s request for more resources, the president tasked Sessions and Rosenstein with creating a backdrop for Comey’s firing. The Rosenstein letter and the Sessions rubber stamp was little more than a ruse to support the improper termination.

Then there were the lies that followed the firing. The Trump administration sent out its minions to create a false narrative. The false narrative was that Rosenstein was the driving force behind the Comey termination. White House Press Secretary Sean Spicer and Deputy Press Secretary Sarah Huckabee Sanders said that Rosenstein submitted a memorandum to the president that charged Comey was inept and had to go. Trump communications aide Kellyanne Conway reemerged from obscurity to cast Deputy Attorney General Rosenstein’s memorandum as the impetus for Comey’s termination. The White House issued a press release claiming that Trump acted upon the recommendation of Attorney General Sessions and Rosenstein. Even Vice President Mike Pence weighed in, stating that Rosenstein was the driving force. The party line was sold that Rosenstein initiated the action to fire director Comey.

There was just one problem. News reports suggest Rosenstein threatened to quit if the administration insisted on making him the culprit for Comey’s termination. This left the administration with the need to change its story once again, now asserting that Trump planned to terminate Comey even at the time of taking office in January. This has undercut any notion of truthfulness coming from the White House.

Compounding this issue is that in February of this year, members of the FBI met with White House Chief of Staff Reince Preibus about the status of the investigation into Russian influence and the Trump administration. Priebus went on national television confirming that the meeting occurred and that he had conversations with the top levels of the FBI. It is also known that Rep. Devin Nunes (R-CA), as a member of the congressional committee investigating allegations of Russian tampering in the presidential election, improperly advised and briefed the White House on the status of the FBI’s investigation. Finally, in his interview with NBC’s Lester Holt, Trump admitted that he called the FBI to get an update on the status of a possible criminal investigation of his activities. This is an incredibly improper action demonstrating his obSessions with the status of the investigation.

In other words, the Trump administration had been improperly receiving information regarding the investigation long before Comey’s termination and was receiving information relative to the private briefings which were given to the congressional investigative committee. It is not a stretch to conclude that as long as the information they received was non- threatening they were not prepared to take any action nor was there an imminent reason to do so. However, something changed that perspective and made Comey’s immediate departure necessary. The only reasonable and credible change was the determination by the FBI director to intensify the investigation.

The case against Trump is quite simply that: 1) there was an official proceeding before the Congress; 2) President Trump was aware of the congressional investigation and that 3) he intentionally and corruptly endeavored to obstruct the congressional investigation. The courts have been clear on this issue. The linchpin in determining obstruction is whether or not Trump had the intent to improperly influence the investigation, not on the means that he used to do it. Any endeavor done with the intent to improperly influence the investigation violates the statute. For this reason, Acting FBI Director McCabe’s opinion that the investigation was not obstructed is of no consequence. It is only the intent of the actor that matters and not a successful outcome.

All of the actions of President Donald Trump as set forth above strongly suggest an intent to impede the investigation into Trump, his aides and associates and Russia. In proving the case for obstruction, evidence of his intent need not be direct but can be circumstantial. In other words, we are entitled to glean Trump’s intent by all of the attendant actions.

What seems certain in a Republican controlled and bitterly divided Congress is that it does not have the political will to bring impeachment charges based upon the President’s actions. It is also certain that the Department of Justice will not. But there is a maxim in law which says that a person intends the natural and probable consequences of their actions. Here, the intent of Attorney General Jeff Sessions and Donald Trump could not have been clearer. Many citizens have been convicted of obstruction on much less.

The obstruction of justice in this matter has little to do with whether or not there was collusion with Russia. Indeed, it could well be determined that no collusion occurred and both individuals could be guilty of obstruction. If nothing else, the lessons of history are clear. In politics, the initial allegations of wrongdoing may not be fatal, but the subsequent cover up almost always is.

Robert Tarver is a practing attorney in New Jersey and Legal Analyst for

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