A Question of Law: Calls for the Indictment or Impeachment of Donald Trump Are Transparent and Premature

donald_trump_president-elect_portrait_cropped440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the chorus of commentators suggesting that the Comey memo is compelling evidence for either a charge of obstruction of justice or an actual impeachment.  I have been cautioning against such sweeping assumptions.  Obstruction is a crime and crimes have elements.  The elements are not satisfied by this memorandum.  Yesterday senators revealed that Rod Rosenstein suggested that he was already informed that Comey would be fired before he wrote his memorandum supporting termination.  That would not materially alter the legal analysis.  Rosenstein’s memo confirms that he believed that Comey should be fired.  He had met with Comey and clearly left with reservations over his continued fitness for the position.  The fact that Trump may have made what Rosenstein thought was the right decision for the wrong reason is marginally relevant. Comey’s immediate boss was not supporting his retention.  Moreover, Trump’s conflicting statements do not improve the case for prosecution.  It it true that Trump has contradicted his staff and seemingly himself.  Yet, Trump has insisted that he felt Comey was doing a poor job and yesterday he reaffirmed his position that he never asked Comey to drop the Flynn investigation.  However, even if he said such an incredibly inappropriate thing, it would not meet the standards of obstruction for the purposes of a criminal charge in my view.  In other words, this is a question of law not fact and the law is not on the side of those calling for criminal counts or articles of impeachment.

Critics increasingly sound like my kids when we drive across country and start to chant “are we there yet?” before we are even a block from the house.  Many view a criminal charge or impeachment as the only hope for America.  However, neither the criminal code nor Article II were meant as post hoc political options for unpopular presidents. Indeed, both are designed to be insulated from public distempers and passions.

None of this means that this is not a valid basis for investigation. It is.  Moreover, the White House staff appears encircled like a wagon train on the Plains with no ammunition and no nearby fort. The difference is that they seem encircled by their own president who continued to prevent any movement to better ground.  What is fascinating is that Trump appears intent on creating the most self-incriminating appearance without evidence of an actual crime on his part.

Here is the column:

With the scandal du jour of the Comey memo, President Donald Trump’s trip to Saudi Arabia looks less like a diplomatic flight as fleeing the jurisdiction. For the first time, the Comey memo pushes the litany of controversies surrounding Trump into the scope of the United States criminal code.

However, if this is food for obstruction of justice, it is still an awfully thin soup. Some commentators seemed to be alleging criminal conduct in office or calling for impeachment before Trump completed the words of his inaugural oath of office. Not surprising, within minutes of the New York Times report, the response was a chorus of breathless “gotcha” announcements. But this memo is neither the Pentagon Papers nor the Watergate tapes. Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.

A good place to start would be with the federal law, specifically 18 U.S.C. 1503. The criminal code demands more than what Comey reportedly describes in his memo. There are dozens of different variations of obstruction charges ranging from threatening witnesses to influencing jurors. None would fit this case. That leaves the omnibus provision on attempts to interfere with the “due administration of justice.”

However, that still leaves the need to show that the effort was to influence “corruptly” when Trump could say that he did little but express concern for a longtime associate. The term “corruptly” is actually defined differently under the various obstruction provisions, but it often involves a showing that someone acted “with the intent to secure an unlawful benefit for oneself or another.” Encouraging leniency or advocating for an associate is improper but not necessarily seeking an unlawful benefit for him.

440px-Oval_Office_1981Then there is the question of corruptly influencing what? There is no indication of a grand jury proceeding at the time of the Valentine’s Day meeting between Trump and Comey. Obstruction cases generally are built around judicial proceedings — not Oval Office meetings.

Of course, that does not change the fact that the question by Trump was wildly inappropriate. Yet, it also raises questions of Comey’s judgment. The account suggests that Comey was so concerned about the conversation that he wrote a memorandum for record. But that would suggest that Comey thought the president was trying to influence the investigation but then said nothing to the Justice Department or to his investigation team. The report says that, while Comey may have told a couple of colleagues at the FBI, he did not tell the investigation team “so the details of the conversation would not affect the investigation.”

Why? If he thought the president was trying to derail the investigation, that would seem relevant to the scope of the investigation. It is like a bank president seeking to close a fraud investigation, but the contact in the FBI decided not to tell bank investigators. One explanation would be that Comey did not view Trump as a potential target of the Flynn investigation, and thus did not view the uncomfortable meeting as relevant to the investigation team (and Trump has maintained that Comey told him three times that he was not a target). However, that would make the case even weaker for allegations that Trump was trying to protect himself or his inner circle by seeking closure for Flynn.

It is highly concerning that Trump has described how Comey actively campaigned to keep his job during this period. As usual, Trump has created the most problematic record for judging his own actions. If Comey was pleading for his job as suggested by Trump, the impropriety of the alleged statement in the Oval Office would be exponentially increased. Trump categorically denies that the statement was ever made. That alone could support an immediate demand for any and all tapes in the possession of Trump and he would be required to turn them over.

There is a separate question of whether this type of alleged obstruction could be the basis for impeachment. As someone who has been down that long impeachment road before, I would again advocate caution. Last night, respected former presidential advisor David Gergen said that, with the Comey memo, we are now “in impeachable territory.” If so, we have one foot on the shore and one in a raging surf. Before we start an impeachment proceeding, we need to be on terra firma. It requires more than uncomfortable meetings or ill-considered disclosures.

225px-richard_nixonIt is certainly true that an impeachable offense does not have to be a prosecutable crime despite the standard of “treason, bribery or high crimes and misdemeanors.” Professors like Laurence Tribe and others have called for impeachment, even before this latest allegation. It is also true that Richard Nixon was facing impeachment allegations that included efforts to influence or obstruct the investigation of his campaign.

However, Nixon’s impeachment involved a host of clear criminal acts from slush funds to burglaries. There is still no compelling evidence of an actual crime at the heart of the Russian investigation. Flynn is facing allegations of basic reporting or disclosure violations under the Foreign Agents Registration Act (FARA) which is rarely actually prosecuted. Indeed, there have been only seven prosecutions under FARA since 1966, when the law was revised.

The investigation of Flynn has not produced any reported evidence implicating Trump. A FARA violation is a relatively minor federal violation for a president if that is the scope of the FBI investigation. Obviously, if there is some undisclosed major crime implicating the president, the seriousness of the alleged statement would grow in the same proportion. However, Trump has insisted that he was told repeatedly by Comey that he was not under investigation.

Impeachment is not meant to be an alternative for criminal cases that cannot be submitted to a grand jury. It is also not meant to be politics by other means. Finally, it is not a vehicle to redo an election for those with morning-after regrets. Ironically, for those who charge that Trump has compromised the legal system, the same objection can be made over demands for criminal charges or impeachment based on his still undisclosed memo.

Fortunately, there is ample reason to expect answers to these questions. There is a paper trial and witnesses. Moreover, by discussing aspects of these conversations with Comey, Trump has undermined claims of privilege and has made it easier for Comey to speak to Congress. However, absent tapes, this could well end up as a “he said, he said” dispute.

These men were obviously not fond of each other. Comey reportedly said that Trump was “outside the realm of normal” and possibly “crazy.” Trump has called Comey a “showboat” and equally disdainful remarks. Whether it is a memorandum for record or a diary entry, one-sided accounts of conversations generally fall short of compelling evidence with this type of history of tension.

For all of these reasons, we need to move beyond the hyperventilated pronouncements of criminal conduct or impeachable offenses based on this memo. This conversation in the Oval Office is a valid matter of concern and worthy of further investigation. It is not proof of an impeachable offense any more than it is proof of a crime.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified during the Clinton impeachment and serves as the lead defense counsel in the last impeachment trial in the U.S. Senate for Judge Thomas Porteous.

125 thoughts on “A Question of Law: Calls for the Indictment or Impeachment of Donald Trump Are Transparent and Premature”

  1. If the American people weren’t disgusted enough with the political class to have elected an outsider, just wait for their reaction when the witch hunt goes to trial. Those that supported Trump and/or opposed Clinton won’t have forgotten the previous 8 years of an uber Presidency that owned the deep state that is now working to oust a constitutionally-elected President. These voters are not the Gruber-lemmings. They don’t and won’t overlook the hypocrisy. Bring it on and let Donald Trump do what he was elected to do. Nothing like impeachment hearings and trial to drain the swamp and expose to everyone what has been lurking in there.

      1. At issue is not the core 60% that will remain with the two parties. The blow back will come from the remaining 40% that actually decide elections.

  2. The nerve of Turley. A fair application of law and common sense? Who does he think he is!

    1. Disgusting but legal. Hillary is kicking herself that she didn’t think of it. We need real choices in the voting booth. The Democrat party is dead, the Republican one not far behind.

  3. What Lincoln didn’t anticipate is that a House divided against itself that is also thoroughly corrupt, will indeed somehow manage to keep standing – if one can call it that, if only for the vantage necessary to keep on picking each other’s pockets.

  4. Republicans and Democrats are like Racoons robbing your garbage cans (or anything you can’t protect). Each sees the other one as the masked crook.

  5. You can watch someone like Trump grow and fester throughout the decades, boasting, making a fool of himself, there primarily for our amusement, like many spoiled, rich brats. But, when this sort of buffoon attains the highest office in the land, it screams out that our system is broken. Electing Trump is the canary in the cage and the canary is having trouble breathing. Granted Trump has not done anything serious enough in one single case but when you add up the constant lying, preening, and tweeting, something is seriously wrong with this man. This Presidency parallels Trump’s TV show where he got to fire someone once a week with millions watching. It was unique at first, entertaining for a few go rounds, but after a while one simply got tired of watching this idiot’s self gratification. There is no there, there, never was and at 70 years of age, probably won’t be. Our best hope is to elect a Democrat majority to the Senate in a year and a half, then in two years bounce this mutt. If he slips on his tongue before then and gets impeached, so much the better. The first step in fixing a broken system is to stop breaking it. Trump is no hairline fracture. He is a major break with reality and everything the founding fathers dreamed this country could become.

    1. If you think the Democrats in their current incarnation as slum lords and finance scoundrels specializing in revolving door technology with special emphasis on keeping a straight face as they rob cheat and lie, are going to fix anything, you need help.

    2. For those new to this blog: Isaac is 100% reliable for your daily dose TDS/Trump Derangement Syndrome.

      Isaac, the day you wake up in a nation that installs POTUS by your desired mob rule, is the day you and yours are not safe walking to the store to buy groceries. IMO, you should stop wishing for that day, but I’m sure that won’t stop you.

      When Isaac writes about “major break with reality,” he knows about what he writes!

      1. Natacha is running neck and neck with issac. One might actually be an alias of the other.

  6. The kinds of things Trump really might be impeached on are the same kinds of things that constitute the bread and butter of the establishment. It is unlikely, to say the least, that THOSE things, (dealings with Russian oligarchs for instance) will be examined by any commission or panel in Washington DC unless they are in the mood to be dragged off to jail themselves. Talk about cutting off one’s nose to spite their face..

  7. Maybe Dems should go after Comey for covering up for Trump. They have a 3 ring circus going on in DC, why the hell not!

  8. On 5/3/17, in sworn testimony to Congress, Comey was asked if anyone tried to impede this investigation to which he replied, “No.” So..there’s that.

  9. The new MSNBC meme of destruction is that Pence lied to Bret Baier about first hearing of Flynn as a foreign agent of Turkey for the first time during that particular interview.
    Because Pence was the transition leader the assumption is he had to know.
    Not pretty.
    Would Paul Ryan be President?

    1. I see what they’re doing now. They think they’re about to succeed in destroying Trump, so now they’ve turned their attention to smearing (and thus de-legitimatizing) Pence. Why don’t they just storm the White House and install Hillary as our new Queen? FFS.

  10. You should add ‘immature’ to the headline. This is just a further extension of their temper tantrum, the left. Like many of you here, I consider myself to be legitimately non-partisan. Pretty fed up with the DNC, they have lost their minds. If the judiciary branch can’t be objective in this matter, I would say we are in trouble in this country, whomever is in the White House. It’s very concerning, and the dems behavior is flat-out purile. So much for not sinking to Trump’s level, eh? I do not respect them, and there is nothing they can do to change my mind at this point. No more votes for the dems will be awarded from me for any election henceforth.

    1. I am generally not this slow after a cup of Italian Roast and a full nights sleep but….as much as I liked the sentiment I missed the connection.

  11. This isn’t Dems v Trump. This is the establishment v Trump.

    1. It is the billionaire Trump oligarchy claiming they are above the laws that have governed this country.

    2. True but how many votes does the Pope have to paraphrase a comment from Uncle Joe (Stalin) although he used the word divisions. The neo-aristocracy establishment and their feudalistic dreams have much more than Democrats and Republicans to worry about.

    3. Exactly!!! That said, the Dems are part of the establishment. They feel Trump cost them their snake oil contract and will do most anything to make him pay.

      Still, they are hardly the MIC, or the FIRE sector, or the MSM in their respective entireties (no matter what people would like to imagine). The knives are out because this entire establishment is corrupt, not just the Dems, and each for different reasons simply won’t hear of improved relations with Russia without corresponding avenues of financial exploitation of that country available to the oligarchs, or in the case of the MIC, full on occupation of Iran.

      1. What if Trump is being paid by Putin as Majority Leader McCarthy said?

            1. This is a perfect example of what I’m talking about and it’s a remarkable, nay, stunning even, coincidence that the accuser’s name is McCarthy.

              For one thing, Putin would have absolutely nothing to gain (over what he already has) and everything to loose by such collusion and the same is largely true for Trump. It’s hair brained.

              That it comes from an R instead of a D (assuming it’s even true or accurate of what was actually said) illustrates Nick’s point. It’s the establishment.

              1. Oh yes, and that it comes from the WaPo should sound alarms louder than from a fire station that it is almost certainly FAKE NEWS.

                1. It is about thievery and if the establishment busts the thieves isn’t that as it should be? Maybe not to those that think people with huge amounts of power are above the law and feel no need to release their financial records.

                  1. The establishment IS the thief. They are trying to bust Trump because he is not THEIR kind of thief. He’s not playing ball. He wants to improve relations with Russia.

                    They want Russia over their own neoliberal barrel where American and European oligarchs can plunder it in the name of “Democracy” (only you will never see anything but a US friendly dictator in charge). Putin has opposed that with remarkable success so they want regime change. Putin must go. It’s not complicated.

                    But they are not going to go after Trump for for anything real because they would end up revealing their own hands are just as deep in the till.

                2. B. Bridge.. Joe overlooked even more substantial evidence of Putin’s interference in the election.
                  Three days before the election, Putin said “I would rather meet with Trump than with Hillary Clinton, who is a devil worshiper and a boozer”.
                  -Weekly World News, Nov. 5, 2016
                  That WaPo story he posted is nothing compared to that WWN bombshell.

      2. or in the case of the MIC, full on occupation of Iran -> or int the case of the MIC, full on occupation of Iran and regime change (Putin must go) in Russia.

        None of these objectives come with good reasons, or at least not good enough to warrant the incredible amounts of blood and resources they would cost, and most of them are outright bankrupt. But of course the blood and resources would not be that of the .01%. It would be ours. For whatever reason, Trump seems to want to avoid that, and it is driving an establishment used to getting every thing it wants crazy.

  12. TRUMP – a once proud beast, now a faithful servant to the 1%. As long as he continues to do so, he’ll be secure. When flareups threaten, he can divert attention by leaving the country, hold more rallies, fire Rick Perry, or insult illegal immigrants.

    He and his daughter can handle domestic affairs, while his ambassador to Israel, Jared secures more business opportunities for the Kushner family.

    1. Works for me the main reason for voting against Hillary was to get an outsider in their to pour gas light the match and stir things up . it’s working beautifully! You can thank the unrepresented but self governing no longer silent majority for banding together in an enough is enough coalition aka counter revolution against the left’s foreign ideology. The fat lady hasn’t sung yet. You secular regressives have more to worry about than the Repubicans – their target number three and having shattered Clinton and smashed the Socialist Left the RINOs are now targets of opportunity.

    2. The Saudis are sure happy to see him as he is them. The deals with TRUMP INC are flowing. What laws?

    3. Jared wanted Comey fired. Kushners don’t want anyone looking at their crooked deals.

      1. The dozens of career, unelected, union-card carrying, Constitution protected, FBI attorneys and their dedicated assistants tackling the Russia case take issue with your lie that they care one whit who is the FBI boss.

        The current FBI Acting Chief’s wife is a card carrying Democrat who recently ran for office (don’t know or care if she won). She’s a multi-millionaire career 1% or maybe even .1%er. The current acting FBI Chief said the investigation works perfectly fine, if fully funded, and it’s irrelevant who is the FBI boss.

        Who the heck are you to call him a liar?

        I fully admit, same as almost everything Trump has done, he and his admin are their own worst enemies. His ability to screw up his message is epic.

    4. billmcwilliams…….. You are the poster boy of all the professors points.

      Let me share something with you sir. I didn’t vote for Senator Obama nor did I vote for President Obama but when he won he then became my president. There was never then nor now any part of me that wished him failure. For him to fail would be for America to fail. Our system has sufficient checks and balances and based on the election they are in tact.

      So take your curt remarks and partisan goo elsewhere. When you have a comment to improve America you have my 👂but until then there is a new sheriff in town. We won you lost.

      GOP victories in the mid term are going to be huge. Trump 2020. Pence 2024. Pence 2028. So lets meet back here in 2032 and talk. Ok? Now see what you made me do.

        1. Not real smart to claim to be able to judge another man’s heart. Are you God?

      1. Thank-you for your comments. I am wondering if this vitriol against Trump will continue to escalate. Since the election, the democrats and MSM have been totally negative and condemning. No wonder Americans are so Fed up with politics. Put America first people, the world is falling apart.

  13. Most people including Mad Max of Chrome Dome have no idea what impeachment means. (Grand Jury ) or what it takes (Representatives, then senate in a full blown trial) or what the penalty is (removal from office and/or censure) or the unintended consequences (their usually really poor choice for VP – Pence and exception. ) But most cannot spell Constitution and worse a huge number think we live in a Democracy which means the level of incomptence is very very high.

    1. Chrome Dome = bald the rumour is she swiped James Brown’s Wig and the surviving family is still trying to get it back for those those haven’t heard the joke.

      VPs – not selected for their ability to be President but for vote getting then forgetting. Pence is far and away one of the few even remotely qualified.

  14. The crimes that were commuted by the previous president and the deception about Benghazi , healthcare plan and violation of the constitution by the so called “professor” of constitutional law were befitting of the third world characters, but our so called wise men and women of Washington stayed silent . In contrast , trump has done nothing even remotely similar to the behavior of democrats, if anything he has been the victim of illegal spying by the govt. the hate for white people that was coming out from the first couple in the last White House was palpable , but no one in the Washington elites called them the bigots because in their world no man and woman of color can be a bigot . How out of touch with reality our elites have become , it’s disgusting .

  15. Trump has done nothing that qualifies under the Constitution for impeachment.

    1. We don’t know so they are premature. Pelosi said to slow down. We may get there and we may not.

      1. Joe – Maxine “The Motormouth” Waters is on constant impeachment patrol.

    2. So, I guess everything’s right with the world. Thanks, Paul.

      By the way, thanks much for this discriminating post, Mr. Turley.

      1. Steve Groen – my comment was limited to one person in the world and one issue about that person. Please, do not put words in my mouth. I am quite capable of speaking for myself. 😉

  16. Before Trump fired Comey, these Democrats wanted him out

    Oct. 30, 2016: Then-Senate Majority Leader Harry Reid, D-Nevada, accused the FBI director of breaking the Hatch Act, a federal law, by publicly disclosing new information about the Clinton investigation 11 days ahead of the presidential election.

    Oct. 31, 2016: The next day, Rep. Steve Cohen, D-Tennessee, echoed concerns similar to Reid’s and called for Comey to resign his FBI post. Cohen reiterated that call in a Nov. 3 opinion column published in The Hill.

    Nov. 2, 2016: Days later, Sen. Chuck Schumer, D-New York, told Bloomberg News that he had lost confidence in Comey for his handling of Clinton’s email investigation.

    That same day, House Minority Leader Nancy Pelosi, D-San Francisco, shared similar feelings with CNN and suggested Comey may lose his job.

    “Maybe he’s not in the right job,” Pelosi said. “I think that we have to just get through this election and just see what the casualties are along the way.”

    Jan. 13, 2017: Two months after Clinton lost to Trump, Democrats blasted Comey after a briefing on the agency’s investigation into Russia’s interference in the election.
    One of them was Rep. Hank Johnson, D-Georgia, who at the time said, “My confidence in the FBI director’s ability to lead this agency has been shaken.”

    Rep. Maxine Waters, D-Los Angeles, put it more bluntly: “The FBI director has no credibility.”

    Jan. 24, 2017: The fading confidence in Comey continued toward the end of January when Rep. G.K. Butterfield, D-North Carolina, said “I think that James Comey needs to fade away into oblivion.”

    1. Trump wanted to keep him. That is until Trump found that he could not co opt him with some slimy schmoozing.

    2. The issues are when and why Trump fired him, not that he fired him.

      1. Was there some sort of unwritten timeline for when to fire Comey? Like, if it didn’t happen in his first 10 days in office, he’s lost the window? Was he required to do this act before trying to repeal the ACA?

        What about concerns that the government has become weaponized politically against Republicans, and any officer who appears to be biased politically who can be removed, should be removed? Such as someone who heads the FBI calling Trump crazy in the press? Would that be a wise move to do to your boss? What about the concerns of the preferential illegal unmasking of Republicans and all of the interagency cooperation that would require?

        My own concern is that Democrats might just succeed in defining how the game is played. They turned the DOJ, FBI, NSA, and the rest of the alphabet soup into a weapon to punish citizens based on political viewpoint. Comey even inserted a requirement of “intent” into the statute that was never there, because literally nothing else was going to keep Hillary Clinton out of prison. So what if Republicans decide to play this game and flip the alphabet soup against Democrats? And every time a new party takes office, our government flips into an adversary of the opposing group? It will be like the French Terror, with different factions getting marched to the guillotine every few years. Do we love Napoleon or hate Napoleon?

        1. Karen S.,…
          -There were bipartisan complaints about the way that Director Comey involved himself in the Clinton email issue.
          Specifically, that it was not the FBI Director’s call to make the decision about what “a reasonable prosecutor” would do.
          And the October notice to Congress that he was re-opening the investigation ( he did not publically announce this….he told Congressional committees, which was probably “just as good as” going directly to the media).
          So I think Trump could have fired Comey in the first weeks after the inaugeration, for those reasons, and with relatively little blowback.
          He fires Comey months later, ostensibly for those same reasons.
          He THEN says he was going to fire Comey in any case, and ties the firing to the “made up Trump- Russia thing”.
          The timing is one issue, but Trump managed to really screw this up with his tweets, and with the comments he made in the interview with Lester Holt.

      2. Comey says you’re wrong. He said POTUS needs no reason or any reason to fire him. Get your lies straight, will ya please?

        1. Joseph Jones….,
          Legally, yes.
          Politically, I can’t think of a more ham-handed way of handling the Comey dismissal.
          Legally, he probably has the right to fire Mueller at any point, and for any reason.
          But I wouldn’t recommend that he exercise that right.
          The point I was making in my response to Karen S. was not that Comey should be kept on, but that Trump really mishandled the way he bounced Comey.

  17. The Steak-Salesman is ignorant of the Constitution let alone the law. Somebody ask him to articulate any of the Amendments for instance and he’d respond that they’re all tremendous.

    Impeachment nevertheless is premature. Investigate and then assign “wholly appropriate” consequences.

    1. Straw man. Memory of the Constitution is not a legal requirement for POTUS. Neither does knowledge of the Constitution have any bearing on a person’s fitness for the office. As ignorant as the MSM coverage of this whole item.

  18. Jonathan Turley once again brings a common sense approach to the subject. It seems as though a lot of politicians have adopted a knee jerk reaction to events in Washington without using due diligence to seek a solution. As an average citizen, my concerns are based on more immediate attention like: ISIS, health care, N. Korea,border security. While the Hatfields and McCoys do battle these problems are not getting any smaller.

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