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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
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  • 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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President Donald Trump Key Force In Driving The Midterms Elections

Trump’s name will not appear on the Nov. 6 ballots, but, he will clearly be front and center in the minds of voters

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Donald Trump
President Donald Trump speaks at a rally endorsing the Republican ticket in Erie, Pennsylvania, VOA

Three weeks before a crucial U.S. midterm election, it would be difficult to find much that Democrats and Republicans agree on. Both parties, however, seem to agree on one thing: President Donald Trump will be the key issue in elections that will determine control of Congress for the next two years.

For many voters, the “Trump factor” could be a deciding consideration in this year’s midterms. And as the president campaigns on behalf of Republicans around the country, he is quick to remind his supporters that he has a huge personal stake in the outcome on Nov. 6.

“All of this extraordinary progress is at stake,” Trump told a recent rally in Southaven, Mississippi. “I’m not on the ballot. But in a certain way, I am on the ballot. So please, go out and vote. Go out and vote.”

Motivating Democrats

As much as Trump motivates his core supporters, he also energizes critics like Jenny Heinz, who helped organize a recent anti-Trump rally in New York City.

“There is an active resistance to this president, who is operating as if he is above the law.”

No question, Trump is the central figure in this year’s election, according to American University analyst David Barker.

“Yes, Democrats from the day after the election in 2016 have been waiting for this day, and it is all about Trump,” Barker told VOA. “Trump fully embraces that. He wants it to be all about him.”

Historically, midterm elections have been a mix of local issues, local candidates, and partly a referendum on the sitting president.

This year’s campaign seems to have accelerated a trend whereby midterm congressional elections have increasingly become nationalized.

“It really is now all national, and everyone is kind of looking at this as either a referendum for or against the president and his party,” said George Washington University expert Lara Brown.

Trump
supporters of President Donald Trump, wearing Mike Braun for Congress shirts, cheer as he arrives for a campaign rally at the Ford Center in Evansville, Ind. VOA

In the latest Washington Post-ABC News poll, a majority of voters in both parties said a congressional candidate who shares their view of Trump is an important consideration as they assess the coming midterms.

Seizing the spotlight

Unlike some presidents who have tried to resist the idea that the midterms are a presidential referendum, Trump has willingly embraced it.

Former Trump strategist Steve Bannon told Associated Press Television that he favors the approach.

“I think if you make this a national referendum and nationalize this election on the success of President Trump’s program, it is a clear winner, and I think the Democrats get crushed.”

Others are skeptical, including former Republican National Committee Chairman Michael Steele.

“All right, fine. You want it to be about you? Well, every candidate on the ballot now has to account for your behavior, has to account for your tweets,” said Steele, a recent guest on VOA’s Plugged In with Greta Van Susteren.

Climate Change, Trump
President Donald Trump speaks during a meeting in the Oval Office of the White House in Washington. VOA

Trump hopes to boost Republican turnout in November; but, Democrats argue he is likely to be just as effective in spurring their voters to the polls.

Maryland Democratic Representative Dutch Ruppersberger also spoke on Plugged In.

“When all you do is care about yourself and not about people, not about what they need – like your seniors needing medical care. And you just want to look good and knock them out (politically), which is happening, this is hurting. And this is why, I think, a lot of people will come out (to vote).”

Tending the base

Trump has been aggressive on the campaign trail courting his base, especially in Republican-leaning states where many of this year’s closer Senate races are taking place.

“They are focusing on their base, and they are trying to make sure that they are going to show up and vote. And it could make some difference in close midterm elections,” said University of Virginia analyst Larry Sabato.

Trump, USA
House Speaker Paul Ryan of Wis. administers the House oath of office to Rep. Dutch Ruppersberger, D-Md., during a mock swearing in ceremony on Capitol Hill in Washington, . VOA

Some Republicans have urged Trump to try and broaden his appeal beyond his base during campaign visits this year.

But Gallup pollster Frank Newport said the president has limited options.

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“He has kind of given up on attempting to broaden his appeal, it looks like. It fits more with his style,” said Newport. “He has, as we all know, a very combative style. He likes to have enemies because that gives him somebody to fight against. So, it would be hard for a president like Trump anyway to try and broaden his appeal.”

Trump’s name will not appear on the Nov. 6 ballots, but, he will clearly be front and center in the minds of voters, and the midterm results could determine the future of his presidency. (VOA)