Up until now, veiled orders have not been thought the equivalent of obstruction.
On April 10, 2016, President Obama publicly stated that Hillary Clinton had shown “carelessness” in using a private e-mail server to handle classified information, but he insisted that she had not intended to endanger national security (which is not an element of the relevant criminal statute). The president acknowledged that classified information had been transmitted via Secretary Clinton’s server, but he suggested that, in the greater scheme of things, its importance had been vastly overstated.
On July 5, 2016, FBI director James Comey publicly stated that Clinton had been “extremely careless” in using a private email server to handle classified information, but he insisted that she had not intended to endanger national security (which is not an element of the relevant criminal statute). The director acknowledged that classified information had been transmitted via Secretary Clinton’s server, but he suggested that, in the greater scheme of things, it was just a small percentage of the emails involved.
Could there be more striking parallels? A cynic might say that Obama had clearly signaled to the FBI and the Justice Department that he did not want Mrs. Clinton to be charged with a crime, and that, with this not-so-subtle pressure in the air, the president’s subordinates dropped the case – exactly what Obama wanted, relying precisely on Obama’s stated rationale.
Yet the media yawned.
Of course, they’re not yawning now. Now it is Donald Trump, not Barack Obama, sending Comey signals. So now, such signals are a major issue – not merely of obstruction of justice, but of high crimes and misdemeanors.
Trump hysteria seems to be a permanent condition, a combustive compound of media-Democrat derangement surrounding a president who keeps providing derangement material. Let’s try to keep our feet on the ground, but with a commitment to get the evidence and go wherever it takes us.
For now, we don’t have much evidence. Essentially, we’ve got single statement, mined by the New York Times from a memo that no one outside a tight circle inside the FBI has seen – indeed, that the Times has not seen. According to anonymous sources, the memo was written by then-FBI director Comey shortly after a private meeting with President Trump – only two of them in the room after Trump asked other officials to leave. This was on February 14, the day after National Security Adviser Michael Flynn resigned over inaccurate statements he made to senior administration officials in recounting conversations he’d had with Russian ambassador Sergei Kislyak.
Trump is said to have told Comey, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
Other than telling us that Comey replied, “I agree he is a good guy,” the Times provides no context of the conversation. Its report gives no indication of whether the memo provides such context.
On its face, the statement does not amount to obstruction of justice. Trump could be said to be putting pressure on his subordinate, just as Obama was putting pressure on his subordinates (Comey included) last April. But assuming the Times is right about the memo, Trump did not order Comey to drop the case. In fact, Trump’s statement is consistent with encouraging Comey to use his own judgment, with the understanding that Trump hoped Comey would come out favorably to Flynn.
But of course, also with the understanding that if Comey pushed to prosecute Flynn, the president – who had the power to fire Comey – was going to be very unhappy. Just as President Obama would have been very unhappy, and in a position to fire Comey, if Mrs. Clinton had been indicted.
It is not frivolous to infer that Trump’s statement to Comey was a veiled order. If that is your interpretation, though, you cannot avoid the conclusion that Obama’s public statements were also veiled orders not to indict Clinton. Up until now, veiled orders have not been thought the equivalent of obstruction of justice.
Context is critical, and we don’t have it.
In light of what I’ve previously contended (viz., that obstruction of justice is a concept irrelevant to a counterintelligence investigation), I must note here that concerns about obstruction of justice in the context of the reported Trump-Comey conversation are legitimate. That is because the conversation does not directly relate to the so-called Russia investigation, which Comey has explained is a counterintelligence inquiry regarding Kremlin interference in the 2016 election. Rather, Trump and Comey were speaking about a criminal investigation of Flynn, ancillary to but separate from the Russia investigation. We are informed that a grand jury in Virginia is considering evidence of transactions involving Flynn, although it is not clear that this was the case on February 14, when Trump and Comey spoke.
There is good reason to believe that veiled orders, while inappropriate, are not criminal – i.e., they do not rise to the level of prosecutable obstruction of justice. Obstruction can be a tough crime to prove. It is necessary to establish, beyond a reasonable doubt, that the suspect acted corruptly in impeding or influencing a criminal investigation. That means acting with knowledge that one’s conduct was unlawful, and with a specific intent to undermine the truth-seeking function.
Context is critical, and we don’t have it. All we know is that Trump hoped the criminal investigation would be dropped – but again, did not order it to be dropped – and vouched for Flynn’s character. That may have been inappropriate under the circumstances, but it was not corrupt. Comey surely found it awkward, but he clearly did not perceive it as obstruction. The former director is a highly experienced and meritoriously decorated former prosecutor and investigator. He knows what obstruction of justice is. And the Jim Comey I’ve known for 30 years would not stand for political interference in law enforcement. If he had understood Trump’s remarks as a directive or, worse, a threat, he would have resigned.
It is not enough to say that he did not resign. Unlike the investigation of Mrs. Clinton, the investigation of Flynn has continued. Plus, Comey does not appear to have indicated to his subordinates, to his Justice Department superiors, or to Congress that he felt threatened. Deputy attorney general Rod Rosenstein and Comey’s former deputy (now acting director) Andrew McCabe have not intimated, even vaguely, that their investigative activities have been hampered. Again, the investigation is proceeding apace.
There is no question that obstruction of justice is an impeachable offense. But media hyperventilating notwithstanding, the basis for claiming at this point that President Trump obstructed justice is not there . . . unless you also think President Obama obstructed justice last April.
A version of this piece also appeared on National Review Online.