Why Trump is right about the FBI’s probe of him
When it comes to FBI probes, there’s nothing worse than a bad man in charge, and it seems as though Trump was right when he asserted that the investigation into him was an “open and shut” one.
This week, he was confronted with the facts on Capitol Hill, and he was right.
The FBI is investigating whether Trump committed obstruction of justice in firing former FBI Director James Comey.
And it’s not a slam dunk.
In fact, Trump could be held legally responsible for obstruction if he tried to obstruct the investigation, and even that’s very unlikely.
But if Trump tried to impede the investigation with any of the methods that are outlined in the law, the president could face a criminal indictment and face criminal penalties.
For starters, it would be illegal to try to impede an FBI investigation by using the “leak” doctrine, which states that you can’t use a threat of using “false or misleading statements” to make someone’s job easier.
It’s similar to the “wilful and malicious intent” doctrine that’s been used to try and prosecute Trump over the past few years.
That’s why the Constitution says you can use obstruction as a legal defense if you have a reasonable belief that the president is trying to influence or impede the bureau’s investigation.
But the law doesn’t define what “the President” means in this context.
The Justice Department, in fact, says the definition of the word “the” in the Constitution doesn’t include the word President.
So Trump’s argument is a nonstarter.
What is obstruction?
“The obstruction of the legislative process, or of the executive branch, by usurpation, usurpations, or by threats, by any other form of intimidation or coercion, is the crime of sedition, and under this definition, a violation of the law against the United States, punishable by imprisonment for a term of years, or both.”
The definition of seditious acts by Congress is very broad, but it’s also not clear that the word is defined exactly the way Trump is saying.
“The words ‘sedition,’ ‘disloyalty,’ ‘attempt,’ ‘disrespect,’ ‘incitement,’ ‘aggravation,’ ‘conduct,’ ‘aggressions,’ ‘treason,’ ‘intimidation,’ ‘murder,’ ‘looting,’ ‘assault,’ ‘bribery,’ ‘possession,’ ‘deliberate interference with the rights of others,’ and ‘any other term or word which is likely to provoke an immediate breach of the peace, including threats, bribery, fraud, or embezzlement, are not included in the crime.”
That’s the exact definition of obstruction.
But what is “intent”?
Congress also has a broad definition of what constitutes “intent,” but it doesn’t have the same specific definition of “sedition.”
The dictionary defines “intent” as: “intent to cause annoyance or distress or to cause injury to another person; to have the purpose of causing annoyance or inconvenience or to annoy another person.”
This means that Trump could still be convicted under the obstruction law if he’s attempting to cause “illness” to Comey, but his intent is not likely to be the same as his actual conduct.
Trump could also be convicted for lying to Congress and making false statements.
“Conspiracy to obstruct justice by false statements, by knowingly making false, fictitious, or misleading representations or by knowingly using false language to cause an effect likely to affect the outcome of an official proceeding, is a crime punishable by up to ten years in prison.”
So, what about Trump’s “threats”?
Well, there are a number of reasons that a threat might not be sufficient for obstruction, but the law is clear that “the use of false, misleading, or fraudulent information or representations is not a crime.”
So if Trump were to say to Comey that he was “going to fire him,” that would be obstruction.
“In the case of an impeachment of the President, or the Senate finding that the President committed a felony, a person who is convicted of such a crime must be tried and punished as a public official for a period not exceeding five years, which may be reduced to the minimum if the offense was committed while the person was in office.”
So this isn’t obstruction.
Trump would still be guilty of a crime if he were to threaten Comey with criminal charges.
But that would violate the law and the Constitution.
What if Trump did threaten Comey?
The president is not required to make such a threat to prevent the FBI from investigating.
The Constitution, however, allows Congress to make “specific and articulable declarations of the purpose and character of the threatened action.”
The statute is silent on the meaning of “specific” or “mathematical” threats.
But in the words of a recent Supreme Court case, “[w]e find that a statute that defines specific and articular threats to interfere with an investigation in a way that would reasonably be expected to cause the FBI to