Report: Trump Pressured the DNI and NSA Chief To Scuttle FBI Investigation
jonathanturley
This morning’s news is again filled with a new and troubling disclosure out of the Trump White House. Various news organizations are reporting that President Donald Trump spoke to Director of National Intelligence Dan Coats and National Security Agency Director Adm. Michael Rogers about the Russian investigation and asked them to publicly deny evidence of cooperation between his campaign and Russia. I was on Morning Joe today and once again cautioned about declaring a prima facie case of obstruction (as many have done on CNN and other networks) in the absence of facts satisfying the elements for that crime. While it is obviously something of a buzz kill, there still is not sufficient evidence (even if these accounts are true) to support an indictment.
In addition to the statements to Rogers and Coats, the Washington Post details how White House officials asked other officials “Can we ask him to shut down the investigation? Are you able to assist in this matter?”
Once again, it is important to consider whether such statements meet the definition of obstruction of justice. Do these inquiries, if true, constitute an attempt by someone to “corruptly” “influence, obstruct, or impede” the “due administration” of justice. This is usually anchored in a pending judicial or congressional proceeding. Let’s say for the moment that the FBI can say that there were ongoing proceedings to “obstruct” in the form of the investigations in February and March. Would these comments be an effort to corruptly influence or impede? Trump can insist that he viewed the investigations as baseless and wanted to the investigation to be closed in the absence of any real evidence of collusion. More importantly, it is relevant to ask about the underlying crime. Trump himself is not accused of any underlying crime. Moreover, “collusion” is not some readily identifiable crime under the criminal code. Certainly the failure to register as a foreign agent is a crime, albeit one that is rarely prosecuted. Lying to investigators is a crime, but that would be directed at Flynn and not Trump in all likelihood.
Section 1503 is a likely basis for investigation due to its catch all clause. The Section states:
(a)
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or 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 administration of justice, shall be punished as provided in subsection (b). If the offense under this section occurs in connection with a trial of a criminal case, and the act in violation of this section involves the threat of physical force or physical force, the maximum term of imprisonment which may be imposed for the offense shall be the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.
Much of Section 1503 refers to formal proceedings or court officers or jurors. It does have “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 administration of justice.” That line has been used primarily in reference to obstructing formal proceedings, but the Justice Department could try to secure a more expansive reading. However, there is a danger to such expansive readings of the criminal code. The Justice Department could start to criminalize a huge range of conduct or comments by alleging that there was a prospect of a grand jury investigation or other proceeding.
There is also Section 1505 but that is not much more help during the time frame of these comments of February and March. Section 1505 states:
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—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
Section 1505 references two types of obstruction. First, there is a “pending proceeding is being had before any department or agency of the United States.” It is not clear that such a proceeding existed, particularly in the absence of a grand jury proceeding. We may learn more about such proceedings but that would be the best foundation. The second reference is to “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.” However, Trump’s comments were directed at the FBI investigation and the congressional inquiries were broader and less defined.
Section 1505 also allows for prosecution for withholding, misrepresenting, removing from any place, concealing, covering up, destroying, mutilating, altering, or by other means falsifying any documentary material, answers to written interrogatories, or oral testimony with the intent of avoiding, evading, preventing, or obstructing compliance, in whole or in part, with that demand. We have yet to see evidence of such conduct within the White House. Flynn might be accused of concealing such material, but again it is a bit early on that count.
Notably, Trump was public about his dismissal of the Russian investigation and his view that it was a politically manipulated allegation. He was not hiding his desire to see the investigation ended. His comments to Comey and others were clearly and grossly improper. But were they crimes in themselves? That is the more difficult question.
The comments could reflect Trump’s sensitivity over allegations tarnishing his historic victory over Clinton. He is notoriously sensitive over his public persona. The additional allegations (and contemporary memorialization by staffers) offer ample reason to investigation and obstruction should be a focus of the investigation. However, such investigations generally work from a foundation in the criminal code. As of now, his comments make Trump appear more like Captain Queeg than John Gotti:
