I read the Comey statement given to the Senate Select Committee today before his testimony tomorrow. It provides a few titillating new details not previously leaked. It does nothing to advance a legal case for obstruction of justice. Literally, it does nothing but hurt such a case. The only new, relevant fact in that statement was Comey confirming what Mr. Trump and two US Senators told us as late as May 3, 2017. Mr. Trump was not under FBI Investigation. That wasn’t news to people who could read.
Comey’s account does add fuel to the fire that this President has judgment issues, and he clearly does not understand his role or the abuses of power with which he flirts. That too has not changed from my analysis.
The Comey statement, in my opinion, does further damage this President politically because it shines a light on his character that reinforces the idea that he is unfit to be President. While the Comey statement, taken as true, brings us no closer to a federal charge of obstruction of justice, it weakens the President. It also brings him closer to either impeachment or a 25th Amendment movement. Impeachment, after losing the House, is the most likely adverse scenario Mr. Trump might face, though I still strongly doubt impeachment and conviction are possible on any known fact.
Internet hyperventilating is at a fever pitch, as partisans, fools, and internet lawyers choke on their own legal ignorance. Some of that was set in motion when CNN “legal analyst” Jeffrey Toobin, tweeted out this:
Comey's statement establishes obstruction of justice by Trump. Period.
— Jeffrey Toobin (@JeffreyToobin) June 7, 2017
Toobin has not practiced law in nearly 24 years. He left the practice under a bit of cloud related to an allegation that he hauled off the work of independent counsel Walsh during the Iran Contra investigation to write a book. Still, Toobin’s legal resume is not fluff, and he has been writing and doing legal analysis for twenty-plus years. His stamp of surety on the promise of an obstruction charge carries credibility with the unwashed masses … which is why it was so irresponsible.
I am not a paid legal analyst for CNN, though I have appeared as a legal analyst and expert hundreds of times on radio, TV, and cable. I also taught law, and well, I still practice law. So, I don’t just play lawyer on TV.
Mr. Toobin’s legal conclusions are without foundation, and likely colored by both his disdain for President Trump and his political views. I am not a Trump supporter either, but I don’t let my views of his acts and conduct shade my analysis.
The question of obstruction of justice is one that requires the application of facts to the law. The legal elements of obstruction of justice are quite hard to prove, and it is only through the application of facts that we can guess if any reasonable prosecutor can meet his or her burden.
Without some damaging facts, not yet known or public, there are no facts that support a prosecution of the President for obstruction of justice, and the Comey statement only secures the President’s legal standing.
Mr. Toobin … sir … I mean … there are zero facts that support that legal charge … PERIOD.
Indeed, one might credibly argue that the Comey statement, by itself, assuming all is true and there are no other unknown facts, absolves the President of an obstruction charge.
In fact, I responded just that way to Mr. Toobin on twitter … and boy did that bring out the rubes, radicals, and crazies … all of whom apparently follow him.
LOL. Comey statement proves Trump not under investigation, and flatly repudiates false charge of #ObstructionOfJustice
— Rich Kelsey (@RichKelsey) June 7, 2017
To be sure, there is profit in using one’s legal franchise to support one political view or another. Ironically, while our site is named www.committedconservative.com, we refrain from politically predictable outcomes on both legal analysis and political analysis. That’s not to say we don’t have strong conservative views, but in the end, the analysis is credible when it is … well … credible.
Anti-Trump conservative and legal expert David French likewise reached the same conclusion as I did with respect to the Comey statement. He found it showed an abuse of Presidential power, but no obstruction.
— The Reagan Battalion (@ReaganBattalion) June 7, 2017
French understands the law and applies it without remorse or political motivation. Toobin could learn from that, or he could keep firing-up the knuckle-dragging, mouth-breathing, #resistance that fuels his network, twitter account, and magazine.
Here’s why Toobin and the #resistance are wrong about obstruction of justice. Law and facts matter. The obstruction statute most applicable to this case is 18 USC 1512(b), under which no prosecutor could get a conviction of the President under the known facts.
The statute reads:
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation supervised release, parole, or release pending judicial proceedings; shall be fined under this title or imprisoned not more than 20 years, or both.
According to the Comey statement, Mr. Trump purportedly said to him:
“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
Mr. Trump did no more.
He left the entire decision in the hands of the FBI Director. He did not order the investigation ended. He did not prevent it from continuing. He did not threaten any witness, prevent the collection of any evidence, nor attempt to thwart the investigation through intimidation or concealment.
The statute requires that he do one of those acts, and the intent element of obstruction requires that he did so for the purpose of obstructing a valid investigation. Here’s the kicker, too. He would have to have done so with full knowledge that his obstruction was to block an investigation into criminality about which he was aware and was trying to prevent from being found out.
He already had the “assurance” of Comey he wasn’t under investigation.
No credible lawyer … and no competent prosecutor … can bring these facts before a jury and hope to meet the elements of the obstruction statute. Toobin has to know that. I get that innumerable people on the internet don’t understand this, but a paid, CNN, legal analyst has to know that on the facts alleged solely by the Comey statement, there is no legal case.
Ironically, this brings us to the only real bombshell in this case, which is that the President was not under investigation. That was the worst kept secret in DC.
And, why would Mr. Trump obstruct an investigation if he was not under investigation and the evidence did not lead to him? Sure, he’s no genius, but even the naïve Mr. Trump isn’t going to hang himself when he had assurances from Comey that he was not under investigation.
Finally, and I must point this out again. Mr. Comey had a duty to report the obstruction if he thought it took place. He did not. His carefully crafted memoranda drafted after each Trump encounter don’t report obstruction either.
The Comey statement certainly highlights the irregular conduct of a President in approaching him, but his contemporaneous memo doesn’t hint at illegality. In fact, he specifically says that he took Trump’s statements on Flynn to apply to Flynn, and not the entire Russian investigation.
And to be clear, while Mr. Comey says he understood the President’s request to “see clear to letting this go” meant to drop the Flynn investigation. Comey does not say that the President directed him to do so, or that through his conduct he was going to interfere in the investigation.
The President clearly doesn’t think much of the investigation generally, believes it is unfairly hurting him, and wanted the FBI to get moving on finishing up a politically motivated investigation that has, as of May 3, 2017, found no evidence of collusion between, Trump, Trump’s campaign and the Russians.
In Trump’s mind of course, the entire charge is nonsense, politically motivated, and as he correctly asserts, without any basis in fact. Accordingly, like any chief executive, he wants the waste of time and resources wrapped up. Of course, he’s not the American CEO … and Trump’s complete foolishness in understanding the process and ethics have helped him to make a mountain out of a cavern.
Tomorrow, multiple Senators will ask Comey if he thought the President’s conduct rose to the level of legal obstruction. He will be forced to say no. He will hem and haw. He will caveat. He will make references to it being an on-going investigation. But in the end, he has offered himself to cross examination. As such, he will have to explain why, if it was obstruction, he didn’t report it. Likewise, he will need to say how, if it was obstruction, it fit into this statute.
He won’t even try … but if he does … well … that might break the internet.
Of course, even Comey’s admission that Trump’s conduct in those meetings don’t rise to obstruction won’t end the political charge that “Trump is under investigation,” or that he “obstructed the investigation,” and he “colluded with the Russians” to “hack” the election. That war on Trump will continue.
UPDATE 6-8-17 (9:09 a.m.)
CNN’s Toobin has been taking a shellacking from actual legal experts. In this instance, liberal, renowned law professor and Toobin’s former professor takes him back to school.
— Anderson Cooper 360° (@AC360) June 8, 2017
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of the new book on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
Before returning to private practice, Rich taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.