The President’s Power to End a Criminal Investigation

FBI director James Comey (Reuters/Gary Cameron)

It is not prosecutable obstruction, but it can be abused.

According to a portion of a memorandum the New York Times has reported on but not seen, President Trump told then–FBI director James Comey, “I hope you can see your way clear to letting this go, to letting Flynn go” — an apparent reference to the FBI’s criminal investigation of retired general Michael Flynn, Trump’s former national-security adviser. The president is said to have made this remark in a private meeting with Comey at the White House on February 14 — the day after Flynn resigned under pressure.

The Times report has the predominantly anti-Trump media in whirling-dervish mode, leaping to the conclusion that the president is guilty of obstructing justice. As I’ve countered, this is not just premature, it is wrong.

The president has denied appealing to Comey on Flynn’s behalf. Trump denials have a way of, um, evolving, but even if we assume that this snippet of conversation happened just as the Times alleges, there would be no prosecutable obstruction case. On its face, the statement is an expression of hope; it does not amount to a corrupt undermining of the truth-seeking function of an FBI investigation. Comey, a highly experienced former prosecutor and investigator, knows the law of obstruction cold. He clearly did not perceive himself to have been impeded — he neither resigned nor reported a crime up or down his chain of command. In Senate testimony on May 3 — i.e., nearly three months after the St. Valentine’s Day chat with Trump — Comey averred that never in his experience had the FBI been instructed to drop an investigation for political reasons. Trump, ever his own worst enemy, has stirred the pot with the timing and conflicting explanations of his May 9 firing of Comey, but a president does not need a reason to fire an FBI director. Trump’s rationale may have had both worthy and unworthy elements, but the decision was his to make, and even ardent Russia-conspiracy theorists are apt to doubt that he did it over Flynn. More to the point, neither Trump’s alleged remark nor Comey’s firing has had any apparent effect on the Flynn investigation, which has continued (a grand jury in Virginia has issued subpoenas).

So, what we currently know falls woefully short of a prosecutable obstruction offense, even if we stipulate that Trump created a situation that was awkward and inappropriate. But should we so stipulate?

I ask because I have been highlighting the fact that, on its face, Trump’s statement was not an order that the Flynn investigation be closed. Yet, to assert this fact is to raise an important question: If Trump had ordered Comey to close the investigation, would that have amounted to obstruction of justice?

Read the rest from Andrew C. McCarthy HERE.

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