I asked 6 legal experts if Trump obstructed justice. Here’s what they told me.
"The Questions Mueller Wants to Ask Trump About Obstruction, and What They Mean"
By Sean Illing @seanilling sean.illing@vox.com Jun 8, 2017, 8:20am EDT
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For Jimmy Gurulé, a law professor at the University of Notre Dame, Comey’s statements are more damning: “It is difficult to construe President Trump's statements on February 14 to former FBI Director Comey as anything other than a request to terminate the FBI investigation of Gen. Flynn for reasons other than the merits of the case. This is an attempt to endeavor and influence the due administration of justice under the federal obstruction of justice statute.”
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How strong is the case that Trump obstructed justice based on what we already know?
There isn’t an easy answer to this question. Part of the reason is that we don’t have all the facts. But it’s also because of varying views on the powers of the executive.
Eric Posner, a professor of law at the University of Chicago, pointed out that if “the president is head of law enforcement in this country, and if the president is the head of law enforcement, then he has the authority to hire and fire and to tell his subordinates not to pursue certain investigations.”
But there are compelling counter-arguments to this: Gurulé, who also served as assistant attorney general for George H.W. Bush and undersecretary of the Treasury for enforcement under George W. Bush, insists that the constitutional right to hire and fire is not absolute.
“There’s no constitutional right to hire and fire that is without exception,” he told me.
Gurulé also sees at least three instances in which the president arguably violated obstruction of justice laws. The first is the actual firing of Comey. “If it’s clear that this was done with the aim of interfering with the investigation, that’s obstruction of justice.”
The second instance has to do with Trump’s conversations with Comey. “We know that the president asked Sessions and others to leave the room so that he could talk privately with Comey,” Gurulé says. “If the president urged Comey to back off Flynn, or even if he expressed his desire to see Flynn left alone, that strikes me as endeavoring to influence or obstruct the due administration of justice.”
Still, the question of intent remains. But if it’s true that this conversation occurred as reported and as Comey details, it would appear that the president wanted Comey to make a decision regarding the investigation based on something other than the merits of the case — and that’s obstructing justice by any reasonable standard.
The third potential instance of obstruction is Trump’s alleged conversation with Director of National Intelligence Dan Coats. According to the Washington Post, Trump asked Coats in March “if he could intervene with then-FBI Director James B. Comey to get the bureau to back off its focus on former national security adviser Michael Flynn in its Russia probe.” As with the Comey interactions, the whiff of obstructionism is strong here.
These are all discrete cases, Gurulé says, and they shouldn’t be conflated. Even if there’s a sound justification for Comey’s firing, “that doesn’t pertain at all to the conversation between Trump and Comey or between Trump and Coats.”
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For Joshua Dressler, the bar was comparatively low. In his view, Comey need only affirm what’s already been circulated in the media: “If Comey merely stands by everything that's already been reported in the press and adds nothing else, that alone is enough to suggest pretty definitively that justice was obstructed.”
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