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. Is there something wrong with being transparent? We’re as transparent as can be .. Trump’s bad for America, and we want him gone.

  2. There is no excuse for Special Counsel Mueller not concluding this witch-hunt “investigation,” which has been going on since July, 2016, within a month. Comey, himself, concluded an investigation of 30,000 of Hillary’s e-mails in 5 days during the 2016 election.

    If the executive, legislative and judicial branches don’t bring the process back under rational, constitutional control, some other entity is controlling the country (i.e. the “deep state”) and America is lost.

    Jim Geraghty,

    “Are any Democratic lawmakers starting to fear that they’re not going to find that evidence? The intelligence community is presumably always watching the Russian government as closely as they can. The FBI counterintelligence guys presumably track Russian agents on our soil as much as possible. You figure the NSA can track just about any electronic communication between Russians and figures in the Trump campaign. If there was something sinister and illegal going on between the Trump campaign and the Russian government, the U.S. government as a whole had every incentive in the world to expose that as quickly as possible.

    They didn’t expose it before Election Day, they didn’t expose it before the Electoral College voted, they didn’t expose it before Inauguration Day … How many months have the best investigators in the United States been digging into this?”

    1. George,…
      -I don’t think that Mueller will even have his staff assembled in a month.
      Based on past investigations like this, my guess is that we’re in for another year or two of special counsel and Congressional investigations.

    2. Are you kidding??? I bet Mueller is getting paid by the hour! There is all kinds of things he can do to stretch it out, such as:

      Trips to Russia for research;
      Hire Russian translators;
      Get a Lexus subscription for research,
      Buy a set of US Code Statute books,
      Buy bookcases for the books;
      Shop for office space;
      Shop for office furniture.
      Buy office furniture;
      Buy espresso machines for office,
      Hire a diversity officer for the investigation,
      Have diversity training for employees of the investigation;
      Hire an ethics adviser for the investigation,
      Get computers for the investigation,
      Get a separate server for the investigation emails,
      Buy Bleach Bit for the computers,
      Have lunch with Comey at ritzy restaurant,
      Have lunch with Flynn at ritzy restaurant
      Trips to Turkey for research,
      Retreat in Jamaica to rest and recharge,
      Golf with Obama,

      I could do this for weeks, but the upshot is:

      Crap, this thing will take forever. Mueller is going to milk it for all its worth. And whatever he says, it ain’t going to change nothing.

      Squeeky Fromm
      Girl Reporter

      1. Squeeky,….
        I’m sticking with my guess of 12-24 months for Mueller’s investigation, and roughly the same time frame for the Congressional committees investigations.
        You’re “going on the record” with a prediction that Mueller’s still going at it after May 2019?

  3. Do High-Level Leaks Suggest a Conspiracy?

    May 19, 2017

    Widespread concern inside Official Washington about President Trump’s unfitness for the job is fueling a campaign of high-level leaks that is taking on the look of a “soft coup,” says ex-CIA officer Philip Giraldi.

    By Philip Giraldi


    The end of the article:

    Saving the country from Trump is certainly an attractive notion. I suspect the Comeys, Clappers, and Brennans, together with a host of former senior officers who appear regularly on television, if they were involved, see themselves as great patriots. But they must understand that the blunt instrument they are using is far more dangerous than the current occupant of the White House.

    A soft coup engineered by the national security and intelligence agencies would be far more threatening to our democracy than anything Donald Trump or even the Russians can do.

  4. We don’t know what we don’t know. Certainly, that’s true. But there are things that we DO know. As to Russia: Flynn was hired despite direct warnings by Yates and others that he was subject to blackmail and had access to top secret information. Flynn and Manafort, Dumpster’s campaign manager, have proven ties to the Russians. Even though he fired Flynn, he remains in contact with him. Dumpster said that Putin was a better leader than President Obama, and will not criticize the Russians. Dumpster won’t release his tax returns, so we can vet his financial ties. Dumpster made a profit to the tune of tens of millions of dollars by selling a Palm Beach house he never lived in 2 years after he purchased it. The purchaser was a Russian oligarch–dubbed “the Fertilizer King” by some media. The private jet of the Fertilizer King has been spotted at the same airport as Air Force One when Dumpster goes to Mar A Lago. Dumpster unnecessarily disclosed “code only” details of covert operations to Russians just to show off. That disclosure may well have placed lives in danger, and may permanently impair our relationships with allies. Our safety as airline passengers may be compromised.

    Dumpster decided to fire Comey for the untrue reason that Comey disclosed details of Hillary Clinton’s emails and the patently untrue claim that others in the FBI didn’t like him and couldn’t work with him, but the firing wasn’t immediately after he took office–he waited until Comey’s office was knee-deep into investigating Dumpster and his campaign. Then, he ordered Rosenstein to draft up a memo outlining all of Comey’s alleged misdeeds and faults, knowing he would fire him no matter what, to justify the decision to fire Comey. It if walks like a duck…….

    We, the public, don’t know what we don’t know, but it would be foolish to write off investigations into this conduct as partisan politics. The investigations aren’t going away. The problem is, because Dumpster has lied so many times, because of his demonstrable emotional problems and huge ego and big mouth, he doesn’t deserve a pass. He did not win the popular vote. He made promises he can’t keep. The majority of Americans do not approve of what he’s done so far.

    1. Natacha,….
      Flynn started as NSA on Jan. 20, 2017.
      I think Sally Yates testified earlier this month that she warned Trump on JANUARY 26th that Flynn “could be blackmailed”.
      The chronology does not seem to match up with your claim that Yates warned Trump not to hire Flynn.

    2. Forget the NSA, look at the NASA.

      NASA has ties and shares information with Russia every second of every day.

      It’s called the ISS or International Space Station.

      And how about that “frisky” Bill Clinton and Loral Space & Communications sharing “classified material” with China?

      Timeline of the Cox Report controversy
      From Wikipedia, the free encyclopedia

      “The timeline of the Cox Report controversy is a chronology of information relating to the People’s Republic of China’s (PRC) nuclear espionage against the United States detailed in the Congressional Cox Report. The timeline also includes documented information relating to relevant investigations and reactions by the White House, the U.S. Congress, the Federal Bureau of Investigation (FBI), and United States Department of Justice.

      Sometime in June, a walk-in agent for People’s Republic of China intelligence services approached the United States Central Intelligence Agency (CIA) office in Taiwan and provided them with an official PRC document classified “Secret” that contained design information of all seven of America’s nuclear warheads.[1] Clinton’s Director of Central Intelligence John Deutch was informed the following month.[2]…”

      I’ll bet then-President Bill Clinton had no “intent.”

    3. Natacha,….
      -you mentioned the sale of Trump’s Palm Beach property at a PROFIT to a RUSSIAN.
      You failed to mention that the sale occured in 2008, but I’m sure that was a mere oversight on your part.

    4. Natacha, I just noticed. You expect Americans to take the words of the likes of Sally Yates, James “Congressional Perjurer” Clapper, Jonathan Gruber and Barrack Hussein Obama seriously?

      That’s like saying the Clinton Foundation has clean books or Slick Willy “…never had sex with that woman…”

  5. This author sums this all up very well.

    “We may already be past the point of no return. Some in the White House made it a point to seek dismantling the administrative state, but it appears the administrative state is more than capable of fighting back and seizing additional power through leaks, obstinacy, and partisan rancor — ensuring its survival and propelling what can only be described as a coup d’etat.”


  6. Regarding FARA, how many federal statutes are like this “dead code”, where only 7 prosecutions have been brought in 50 years? Shouldn’t we have a process of weeding out dead code? I think it is an abomination to maintain federal codes on the books that are not enforced systematically and predicatably. When the decision whether to indict becomes rare, arbitrary and “political”, it’s time to revisit the need for such a law.


    “…Even though the facts which prove this to be so may be brought clearly to their minds,…”

    — Adolf Hitler, Mein Kampf

    “All this was inspired by the principle—which is quite true within itself—that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods.

    It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying”

  8. Let the liberals impeach President Trump.

    After they fail,

    President Trump will have free rein.

  9. If the elements of a crime are not met, there is no crime. It’s that simple.

    What remains is mostly political gobbledygookery.

  10. Logical legal processes are of less and less relevance to the liberal Democrats and their media allies.

    Yes, like when Flynn led cheers of ‘Lock her up!’ at Trump campaign rallies…

    Or when Trump asked 9allegedly) Comey about locking up reporters…

    Ooops… bad examples… sorry… I’ll try to find something that ONLY makes Dems look bad…

    1. “Lock her up” refers to Hillary Clinton whom James Comey effectively charged and convicted, only to incorrectly and corruptly “find” that Hillary had no “intent.”

      Hillary Clinton is as guilty as sin and James Comey is a vacillating, bizarre and corrupt ideologue – at the “independent and objective FBI” no less.

      After accusing him, did the opaque and strange James Comey find that President Trump had no “intent?”

      The Big Lie” can be difficult.

      “Oh, what a tangled web we weave…when first we practice to deceive.”

  11. The people elected Trump. The allegations are not even coherent. The latest is that he said something to the Russians which is unknown and that some ally had told us. Well, that was about Hillary having sex with a dog. Go on to other issues.

  12. anon, We seldom agree but we do on this. Lieberman is a guy who can be intimidated. If he gets the FBI job it will be 2 weak voiced, girly men, puppy dogs, in Lieberman and Sessions running the DOJ.

    1. Lieberman is on record wanting to put Julian Assange behind bars (or worse) for espionage. Now that Assange has done his work helping get Trump elected by exposing the HIllary email scandal, Trump, oh the irony, wants to express his gratitude à la Republican. Lieberman, an erstwhile Dem, oh the irony, can be a useful tool for that purpose à la Democrat.

      Speaking of which, Sweeden has dropped the charges against Assange! Now begins Assange’s greatest danger on the ocean of US political hypocrisy to sacrifice it’s benefactors for short sighted political gain.



        “One of the UK’s most respected international criminal lawyers who was representing Wikileaks founder Julian Assange has died after being hit by a train in West Hampstead.

        Married father of two John Jones, QC, worked at renowned legal chambers, Doughty Street and died last Monday morning. Police say they are not treating the death as suspicious.

        The 48-year-old barrister has been described as “a giant in his field” by colleagues, who said that his death is “a monumental loss to the cause of international justice and human rights.”

        Oxford graduate Mr Jones, who took silk in 2013, specialised in extradition, war crimes and counter-terrorism, representing clients from around the world in high profile cases.

        He was part of a team of lawyers acting to prevent the extradition of Julian Assange – holed up in the Ecuadorian embassy for four years – whose case is currently being heard by the UN Working Group on Arbitrary Detention.”

  13. The night of the election, MSM “journalists” actually cried. NPR journalist voices displayed signs of shock associated with witnessing massive numbers of dead victims of war. By the morning, “Progressives” (a perfectly insane word for a modern Orwell novel) called for Trump’s impeachment.

    Only a rabid Progressive thinks Trump’s campaign does not already archive this litany of MSM lies for his second term slaughter of his Democratic rival.

    I have read and fully believe, the natural outcome of the current Democratic rhetoric is a fully realized actual civil war with hundreds of thousands of dead Americans in the street. Readers can decide themselves which side (thanks largely to peace award winner Jesus Obama) has more guns, more bullets, and better shooters.

    I doubt you could get accurate replies, but if you could, and if you’re a Progressive, you might not like to know where most of the nation’s LEOs and military side on this point. You can’t call this a “debate” because progressives hate debate. They’re whole position is who can display more and greater intensity of violence. The first sentence of the preceding paragraph comprises the natural and inevitable outcome of unabated and increasingly high levels of Progressive-sourced violence: war.

    Think about this. Rather than Democratic operatives and their literally insane progressive sycophants in MSM admitting they pooped their pants in the last election, admitting their outright hatred of almost everything this nation stands for, they concocted this amazing pack of lies blaming Putin and Russia. Very recently, progressives said anyone who hated Russia and wanted distance from Russia was a cold war relic, a war monger of the worst sort. Now that progressives found a Russian scapegoat, Russia is the embodiment of pure evil, and we must needs start a nuclear holocaust with Russia ASAP.

    1. Joseph, Since the last election liberals/MSM have been like squirrels on crystal meth.

  14. So, basically, the entire kerfuffle is about Republicans and Democrats almost unanimously believing that Comey should be fired, or at least that he made some really bad decisions as the head of our domestic intelligence agency. And the President, too, felt that way. And Rosenstein, too, felt that way.

    So, everyone’s on the same page.

    Rosenstein confirms Trump’s opinion that Comey should be fired. So…he fires Comey and is pleased that pretty much everyone supports that decision.

    And now he must be impeached because he had an opinion that Comey should be fired before reading Rosenstein’s memo, having not lived underneath a rock for the past 365 days.

    And if there is concern that Trump told Comey that Flynn’s a good guy and he didn’t think he didn’t do anything wrong, then by all means investigate.

    This appears to be a matter where Hillary Clinton can upload our nations Top Secrets to the Cloud and filter it through any number of people with zero security clearance, and sell 1/5 of our nation’s Uranium to Russia, and everyone’s perfectly fine with that, but we are going to be hyper vigilant, with statue in hand, checking every word that Trump utters, or is accused to utter. Because, by God, it’s a completely different standard for anyone other than a Democrat. We have dual laws in this country. One for high ranking Democrats, and one for Republicans. One for the rich and one for the poor. One for the government and its agencies with its endless legal coffers, and one for the average citizen. And we’ve all become jaded to this.

    1. Karen,
      Imagine the most powerful drug cartel in the world having control of our country to make laws and administer justice. Now imagine the weapons they could bring to bear to defend the cartel; federal agencies, corrupted press and the addicted citizenry. Of course they would do just enough “good” to keep the masses pacified; but holy hell will be paid by anyone that would threaten them. The End.

    2. The thing that’s questionable about the way DoJ handled the Clinton server investigation is that we never heard “avoidance of FOIA” and “privatization of government records” to cover up conflicts of interest considered as motivations for lawbreaking. The Comey assertion that her mishandling of classified materials was inadvertant, and not related to espionage rings hollow. If the motive was concealment of government records, it is possible that an indictment could have been brought. It’s also possible she could have successfully defended herself by proving that FOIA is now a major tool of political oppo-research operations.
      It was overreach on the conservatives part to concentrate on “putting our nation’s secrets at risk”, the same way Dems are now overreaching with “collusion with Russia to swing the election”.

  15. That does it! Call FBI. Large Tortoise breaks into house. Caught on video surveillance.
    Viewer discretion is advised. Could this be the next attack on the White House?

  16. Logical legal processes are of less and less relevance to the liberal Democrats and their media allies. They are trying to supplant our rich legal heritage with “subjective feel good” as the new standard of law. Never mind that this naive idealist’s mindset does not address how differences of opinion in “what feels right” are to be resolved. That leaves ad hominem attack, character assassination and outright violence as the default for resolving conflict, reminiscent of the Red Brigade after the Bolshevik Revolution. Who is going to stand up for a legal process as paramount in value to any particular political result? Who are the determined referees who care more about how the game is played than who is winning?

    Answer: Jonathan Turley, and most of the readers of this blog.

    1. Who stood up when the calls came in to hang Clinton or burn her at the stake? The Trumpians whooped and hollered with a frenzy rarely seen in The US. Their leaders, Flynn and Trump ignited them.

      1. Please post quotes and links. We won’t hold our breath. Only a progressive liar confuses “Lock her up” with “hang her” and “burn her at the stake.”

        Do you call Turley and Judge Napolitano (who Fox News fired for his outright claim that Bush’s wars were criminal) “Trumpians?” Both these great stalwarts of the law posted ample case history of persons who committed acts less serious than HRC who were convicted of multiple felonies.

        1. Oh please…

          You’re embarrassing yourself…

          How many friggin’ times did Republicans call for Hillary’s impeachment BEFORE the election?

          What grade are you in?

    2. After what Trump did to his republican and democratic opponents, hope is not jumpin snowflake on us.

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