Comey Memo Could Thrust Trump Into a Deeper Legal Quagmire
(Bloomberg) -- One question is now gripping much of the U.S.: Did President Donald Trump commit a crime in his first month in the Oval Office?
Democrats say reports that the president asked former FBI Director James Comey to drop a criminal investigation into one of his former top aides amount to obstruction of justice, if true. Some legal experts aren’t so sure.
“The comments by Trump as reported are ‘just lay off,”’ said Harvard Law Professor Alan Dershowitz. “That would be just one thing. It wouldn’t be criminal obstruction unless he also said ‘you’ll have to lay off or else I’ll fire you.’ Remember, we have separation of powers and the president, as the head of the executive branch, has the power to fire and direct his subordinates.”
The latest revelation comes a week after Trump fired Comey, in another step that goes beyond the established norms of presidential conduct, even if it’s not found to be illegal. Some see the reports of the memo as bolstering calls for a special counsel to investigate the president’s conduct and possible ties to Russia.
Laurence Tribe, Dershowitz’s Harvard colleague, is among those who view Trump’s request for Comey to end the probe as potentially criminal. When asked by email if Trump’s comments amounted to obstruction of justice Tribe said, “I believe it does, quite strongly.”
Among the things the FBI is examining is the role of Michael Flynn, who resigned as National Security Adviser in February. The day after that Comey met with Trump in the Oval Office and wrote a memo to record the meeting because he was uneasy about the president’s request, according to a person who was given a copy of the document. Comey shared the memo with some close associates, according to the person.
“I hope you can let this go,” Trump told Comey, according to the memo as cited by the New York Times, which first reported on it. Trump said Flynn was a “good guy,” the person said.
The White House denied that Trump ever asked Comey or anyone else to end any investigation.
The disclosure of the Comey memo is the latest crisis to buffet a White House reeling from revelations on Monday that the president may have revealed classified information in a meeting with Russian Foreign Minister Sergei Lavrov and Ambassador Sergey Kislyak. The White House denied the president did anything improper in his meeting with the Russians.
Whether Trump committed a crime if he asked Comey to drop the investigation will depend on his intent, said David Sklansky, a former U.S. Attorney who is co-director at Stanford University’s Criminal Justice Center.
“Suggesting a criminal investigation should wind down because it seems like an imprudent use of government resources is one thing,” he said. “Suggesting it should wind down because you’re worried about where it may lead is very different."
Trump’s remarks to Comey immediately evoked comparisons to President Richard Nixon’s conversations in the Oval Office as the Watergate scandal unfolded. Nixon and his Chief of Staff H.R. Haldeman devised a plan to tell FBI Director Patrick Gray to stop investigating the Watergate burglary because of national security implications. Now many are asking whether Trump’s words could lead to his impeachment.
A president can be impeached for “high crimes and misdemeanors,” according to the Constitution. That’s not the same as an ordinary crime, Bloomberg View columnist Noah Feldman wrote.
“High crimes and misdemeanors are corruption, abuse of power, and undermining the rule of law and democracy,” Feldman, a professor of constitutional and international law at Harvard University, wrote. “They don’t have to satisfy all the technical aspects of an ordinary crime.”
Impeachment involves a vote in the House of Representatives, where the Republicans have a majority.
In a criminal case, former federal prosecutor Peter Zeidenberg said the Justice Department would have to prove that Trump acted with a corrupt intent. If Trump were speaking to Comey “solely out of sympathy or good will for Flynn, Trump would have a good argument that he lacked criminal intent,” Zeidenberg said.
A prosecutor may view “the fact that he’s asking Comey to go easy on Flynn and he later fired Comey because of this ‘Russia thing,”’ as evidence that the president was trying to thwart an investigation that could threaten the president, he said.
Zeidenberg helped prosecute I. Lewis “Scooter” Libby, former vice president Dick Cheney’s chief of staff. Libby was convicted in 2007 of perjury and obstruction of justice in the U.S. investigation of an intelligence agent’s leaked identity. His prison term was commuted by President George W. Bush.
”We are absolutely at the edge of obstruction of justice. It’s not even a close call,” said William Portanova, who served as a state and federal prosecutor for more than 12 years. “Any prosecutor would state there’s a pattern here. It’s unbelievable we’re having this conversation.
The Oval Office conversation also makes it “increasingly likely” that the Justice Department will appoint a special counsel to investigate, said Stephen Ryan, a former counsel to a Senate investigative committee. He noted that Attorney General Jeff Sessions has recused himself and Deputy Attorney General Rod Rosenstein wrote a memo justifying the firing of Comey.
Criminal prosecution of a president is a gray area that hasn’t been defined by the courts yet, said Portanova.
“Maybe this is when we find out,” he said.