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Can US President Donald Trump be Indicted for Obstruction of Justice?

Did Trump obstruct justice when he allegedly asked then FBI-director James Comey for an end to the Flynn probe? And, is it an issue for the courts or Congress to decide?

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Donald Trump's alleged obstruction of justice
From left, President Donald Trump, former White House National Security Advisor Michael Flynn, former FBI Director James Comey. VOA
  • Donald Trump allegedly asked ex-FBI Director James Comey in February to stop his investigation of former National Security Advisor Michael Flynn
  • According to Trump’s personal lawyer Marc Kasowitz, the president never, in form or substance, indicated Mr. Comey to stop investigating anyone
  • The case for obstruction of justice based on Comey’s testimony is far from ironclad, legal scholars say

Washington, June 10, 2017: Did President Donald Trump break the law when he allegedly asked then-FBI Director James Comey in February to stop his investigation of former National Security Advisor Michael Flynn?

The question is at the heart of a legal debate a day after Comey disclosed during closely watched congressional testimony that Trump asked him to end his investigation of Flynn’s suspected ties to Russia.

In riveting detail, Comey recounted that after a February 14 counter-intelligence briefing at the White House, Trump told him that he wanted “to talk about Mike Flynn,” saying Flynn “is a good guy” and “I hope you can see your way clear to letting this go.”

The allegation raised two sets of questions: Did Trump obstruct justice when he asked for an end to the Flynn probe? And, is it an issue for the courts or Congress to decide?

Marc Kasowitz, Trump’s personal lawyer, said in a statement released after the testimony that “the president never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone.”

Directive

Senators were at odds over the implications of Comey’s testimony. While some Democrats suggested it pointed to obstruction of justice by Trump, Republican members of the panel seized on the fact that the president did not explicitly “direct” the former FBI director to drop the Flynn investigation.

In response to a question, Comey declined to say whether he thought Trump’s conduct amounted to obstruction of justice, saying it was up to Special Counsel Robert Mueller to make that determination.

To Trump’s critics, Comey’s revelations recalled the “Nixon tapes,” secret White House recordings that former President Richard Nixon refused to release during the Watergate scandal, ultimately leading to his resignation in 1974.

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Case not ironclad

But the case for obstruction of justice based on Comey’s testimony is far from ironclad, legal scholars say.

While Trump’s alleged interactions with Comey were seen by many as grossly out of line, the Comey testimony did not provide grounds for obstruction charges, these scholars say.

“The president is not facing a particularly compelling case of obstruction for prosecution at this time,” said Jonathan Turley, a professor at the George Washington University School of Law. “This is also not a record that would support impeachment.”

Louis Michael Seidman, a professor of constitutional law at Georgetown University, agreed that the case for charging Trump with obstruction of justice is not there, but he said that Comey’s firing after he refused to carry out the president’s wishes is “a serious matter.”

“No one outside the White House is contesting the fact that that is what happened, that director Comey is telling the truth,” Seidman said. “If he is telling the truth, that means the president has lied about it and that is a further indication he may not be fit to be president of the United States.”

Presidential history

No American president has ever been indicted while in office, though two, Andrew Johnson and Bill Clinton, were impeached but later acquitted.

Legal scholars disagree over whether a sitting president can be prosecuted, but the White House Counsel’s office has argued against it, deciding in at least two instances not to indict a president, Seidman said.

Obstruction of justice, or interference with a legal proceeding, such as a criminal investigation, is a crime, but proving it is legally challenging. To demonstrate obstruction of justice, prosecutors must show evidence of “corrupt intent.”

“That’s a very difficult standard to meet,” Turley said.

Andy McCarthy, a former federal prosecutor and now a fellow at the conservative National Review Institute, said that as the head of the executive branch of government, Trump has “prosecutorial discretion” to end an investigation and that he “couldn’t conceivably have thought he was doing something wrong.”

“Therefore, it would be impossible to prove beyond a reasonable doubt that he acted corruptly,” McCarthy said.

Though Trump’s true motivation remains unknown, “it’s perfectly plausible that the president was feeling sympathetic to his former aide who had just resigned and was facing a torrent of criticism,” Turley said.

Congressional actions

The U.S. Constitution allows Congress to remove a president from office for “treason, bribery or other high crimes and misdemeanors” through impeachment proceedings in the House of Representatives and a trial in the Senate.

While it is easier to bring an article of impeachment on obstruction charges, the allegation of crimes must be far more detailed than what has been alleged about Trump, Turley said.

In the Nixon case, he noted, the first article of impeachment in the House of Representatives listed obstruction of justice but included “nine separate but rather detailed crimes.”

In the Clinton impeachment case, the House of Representatives dropped an article on obstruction of justice, said Turley, who testified before the House in favor of impeachment.

With Republicans in control of Congress, the prospects of their impeachment of their party leader appear slim. But Turley said impeachment is not always brought for purely political reasons.

In Watergate, he noted that Republicans abandoned Nixon in favor of his impeachment. And today, congressional Republicans are “actively supporting the investigation of Donald Trump,” he said. (VOA)

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“Let it Come Out, Let the People See,” Trump on Mueller Report

Trump’s Republican allies in Congress are also poised to leap to his defense

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U.S. President Donald Trump waves as he arrives at Akron-Canton airport in Canton, Ohio, March 20, 2019. VOA

Democratic congressional leaders have, for the time being, ruled out pursuing impeachment proceedings against President Donald Trump. That could all change depending on what is in the eagerly awaited report on the Russia investigation being prepared by special counsel Robert Mueller.

On his way to Ohio Wednesday, Trump told reporters outside the White House that the public should have access to the Mueller report.

“Let it come out. Let the people see,” Trump said. “Let’s see whether or not it is legit.”

The decision by Democratic congressional leaders to pass on impeachment seems to be mindful of recent history, especially the Republican-led impeachment effort against President Bill Clinton in 1998.

In announcing her opposition to impeachment, House Speaker Nancy Pelosi said simply that Trump “wasn’t worth it.”

Pelosi is sticking to her position despite pressure from liberal activists.

“Impeachment is a divisive issue in our country, and let us see what the facts are, what the law is, and what the behavior is of the president,” Pelosi recently told reporters at the Capitol.​

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“Let it come out. Let the people see,” Trump said. “Let’s see whether or not it is legit.” VOA

Trump: ‘Great job’

For President Trump, the idea of impeachment is, not surprisingly, a non-starter.

“Well, you can’t impeach somebody that is doing a great job. That is the way I view it,” Trump said when asked about the issue in January.

Late last year, Trump told Reuters that he was not concerned about impeachment.

“I think that the people would revolt if that happened,” he said.

Trump’s Republican allies in Congress are also poised to leap to his defense.

“I don’t think it is good for the country,” House Republican leader Kevin McCarthy told reporters last week. “The Democrats made a decision (to want to impeach) on the day President Trump one.”

Some Democrats want to keep pushing, including former Hillary Clinton senior adviser Philippe Reines. Reines wrote recently in the New York Times that Democrats would be doing a “civic duty” to pursue impeachment.

“There is a mounting political cost to not impeaching Mr. Trump,” Reines wrote last week. “He will hail it as exoneration and he will go into the 2020 campaign under the banner, ‘I Told You So.’”​

Polls say no

Recent polls show most voters do not favor impeachment at this time. A Quinnipiac University poll earlier this month found that 59 percent of those surveyed do not think House Democrats should initiate impeachment proceedings against the president, while 35 percent support the idea.

Given that the 2020 election cycle is underway, Democrats may prefer to have the voters try to oust Trump during next year’s election, according to George Washington University analyst Matt Dallek.

“By the time impeachment proceedings were even to ramp up, you are talking about the end of 2019 or early 2020,” Dallek told VOA this week. “That creates its own complication because there is another remedy for removing a president and it is called the election.”

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FILE – Then-first lady Hillary Clinton watches her husband, President Bill Clinton, pause as he thanks those Democratic members of the House of Representatives who voted against his impeachment, Dec. 19, 1998. VOA

Political risk

Democrats clearly recall what happened to Bill Clinton in 1998. Clinton lied about and tried to cover up his affair with intern Monica Lewinsky, which led to his impeachment by the House. Clinton remained in office after he was acquitted in a trial in the Senate.

Historically, impeachment has been a rare event. Clinton was only the second president impeached by the House. Andrew Johnson was the first back in 1868. Johnson avoided removal by a single vote in the Senate.

Presidential impeachments have been rare and that is by design, according to University of Virginia expert Larry Sabato.

“They (the founders) did not want presidents impeached and convicted and thrown out of office for minor offenses. They expected Congress to do it only in extreme circumstances.”

Republicans paid a price for the Clinton impeachment, losing five House seats in the 1998 midterm elections. And Sabato said that lesson could have resonance for Democrats today as they mull impeaching Trump.

“Given the fact that the Republicans took a wounded Bill Clinton and made him almost invulnerable for the rest of his term, it should serve as a warning to Democrats,” he said.

Experts also note that the damage to Republicans from the Clinton impeachment was not long-lasting. George W. Bush narrowly beat Al Gore in the 2000 presidential election, and the political fallout from Clinton’s scandal may have cost Gore the presidency.

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Senate Majority Leader Mitch McConnell of Ky., center, speaks during a news conference on Capitol Hill in Washington, March 6, 2019. VOA

Senate obstacle

The biggest obstacle facing any impeachment effort of Trump is the Republican-controlled Senate. Democrats would have to bring over at least 20 Republican senators in any impeachment trial in order to get a conviction and remove the president from office.

A vote to impeach a president only requires a majority vote in the House, now controlled by Democrats. But in a Senate trial, it would take 67 of 100 senators to vote for conviction in order to remove the president from office, and Democrats concede that is not a possibility at the moment.

“It has less than zero chance of passing the Senate,” Sabato said. “Why would you go through all this in the House of Representatives, torpedo your entire agenda to impeach Trump in order to send it to the Senate to have him exonerated and not convicted?”

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FILE – President Richard M. Nixon and his wife, Pat Nixon, stand together in the East Room of the White House in Washington, Aug. 9, 1974. VOA

Nixon case

President Richard Nixon was not impeached over the Watergate scandal in 1974, but the process was well underway. The House began impeachment proceedings through the House Judiciary Committee and was preparing to move Articles of Impeachment to the House floor when Nixon decided to resign.

Several Republican senators including Barry Goldwater went to the White House and made it clear to Nixon that he had lost Republican support and would not survive an impeachment trial in the Senate.

Some analysts predict that President Trump could face renewed calls for his ouster depending on the findings of special counsel Robert Mueller’s report on Russian meddling in the 2016 election.

“I think if the Mueller report indicates some serious wrongdoing by the president and his campaign, it really empowers Democrats to begin deliberating how to move forward with impeachment proceedings,” said Brookings Institution scholar John Hudak.

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But other experts caution that it would have to be something quite serious for Republicans to even consider abandoning the president.

Given the lack of bipartisan support for impeachment at the moment, it does seem more likely that Trump will face the voters again in 2020 before he has to contend with a Democratic-led impeachment inquiry in the House. (VOA)