FBI Director Comey and Obstruction of Justice

What's happening?

President Trump fired the director of the FBI, James Comey. Comey was leading the investigation into whether the Trump campaign colluded with Russia to impact the election.

 

Here's what happened:

 

On October 28th, 11 days before the election: Director Comey publicly notified Congress that the agency had new information in the investigation into Hillary Clinton's use of a private email server. The decision earned Comey praise from then-candidate Donald Trump, condemnation from Democrats and many law enforcement officials and, eventually, blame for Clinton's loss.

 

Over the last few months: Comey has defended his position as a nonpartisan official against both Democrats and the Trump administration—reportedly refusing to "pledge loyalty" to Trump at a private dinner, asking the Justice Department to reject Trump's unfounded wiretapping claims, and testifying before Congress on his decision to publicize the emails. In that testimony, Comey confirmed that the investigation into Trump's collusion with Russia was ongoing.

 

On Tuesday: President Trump fires Director Comey. At first, the White House defended the decision as a move to "restore public trust," citing Comey's handling of the Clinton email investigation and letters from Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein recommending firing the director. 

 

However, in an interview two days later: President Trump said those things didn't matter. It was about the Russia investigation. In his words, "I was going to fire Comey—my decision. I was going to fire regardless of recommendation." "When I decided to just do it, I said to myself, I said, 'You know, this Russia thing with Trump and Russia is a made-up story.'"

Why is it important?

President Trump's decision to fire FBI Director Comey raises questions about the independence of the law enforcement agency and this president's respect for democratic norms. 

 

It also might be illegal. The FBI Director is an appointed position, meaning the president can fire whoever holds it. However, dismissing the top official in charge of an investigation you want to prevent borders on obstruction of justice.

 

Obstruction of justice is a felony.

Debate it!

Is President Trump obstructing justice by firing FBI Director Comey?

No: 

Like Comey or not, like Trump or not, the president was well within his power to fire the FBI director—particularly given the way the FBI has been the subject of unprecedented partisan conflict over the last year under Comey's leadership.

 

The Congressional Research Service notes that “there are no statutory conditions on the president’s authority to remove the FBI director.” Though politics might demand it, the president does not legally need to give a reason at all.

 

Further, the most recent president to fire an FBI director was a Democrat. In 1993, President Bill Clinton fired FBI Director William Sessions after "the Justice Department’s Office of Professional Responsibility said the FBI director had engaged in unethical practices, and after Sessions refused to resign."

 

Based on this precedent, firing James Comey is perfectly reasonable. As Deputy Attorney General Rosenstein put it, "the FBI is unlikely to regain public and Congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary and corrective actions." Whatever confused answer the White House might give about the decision-making process here, firing Director Comey was the right decision.

 

The timing is concerning, but no one would argue in good faith that firing Director Comey will put an end to the Russia investigation. It won't. We should continue to look into the serious allegation that foreign governments tampered with a U.S. election. But that doesn't mean firing Director Comey was obstruction of justice or that it was even a bad idea.

 

Yes: 

According to the U.S. criminal code, obstruction of justice is: "corruptly or by threats or force" attempting "to influence, obstruct, or impede, the due administration of justice."

 

Let's look just at the information that is already public. "To influence, obstruct, or impede the due administration of justice": President Trump used his office to remove the top official in charge of an ongoing investigation into his campaign's collusion with a foreign government. He said himself that the goal was to put an end to the investigation. "By threats": President Trump threatened Director Comey on Twitter in a clear attempt to prevent Comey from sharing his version of events—which Comey is legally allowed to do and which might help the still-ongoing investigation. 

 

In the words of Harvard constitutional law professor Lawrence Tribe, "Comey’s summary firing will not stop the inquiry, yet it represented an obvious effort to interfere with a probe involving national security matters... To say that this does not in itself rise to the level of "obstruction of justice" is to empty that concept of all meaning."

 

But you don't need to be found guilty of obstruction of justice in a criminal court to be impeached for it. That decision is made by Congress. Bill Clinton and Richard Nixon were not criminally charged, but both were impeached for obstruction of justice. (In both cases, the House of Representatives voted to impeach, but neither were voted out of office: the Senate voted against impeachment in Clinton's case, and Nixon resigned before the vote.) In Nixon's case, despite his abuse of power and actual burglary, the first article of impeachment charged him with obstruction of justice. This is perhaps the major crime for which a president can be impeached. President Trump has earned it.

Learn more...

  1. Letters from President Trump, the Attorney General and Deputy Attorney General on the firing of FBI Director Comey
    • "While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the bureau."
  2. President Trump answers questions on why he fired James Comey
    • "And in fact, when I decided to just do it, I said to myself, I said, 'You know, this Russia thing with Trump and Russia is a made-up story,'" Mr. Trump told Lester Holt of NBC News. "It's an excuse by the Democrats for having lost an election that they should have won."
  3. Vox's storystream: everything you want to know about Trump firing Comey
    • "Initial news for Trump looked bad: NBC’s polling found the majority — 54 percent — of Americans found Trump’s move to be inappropriate. But looking deeper into those numbers unearths more partisan reactions. That same poll found that a strong majority was among Democratic or Democratic-leaning voters; 79 percent of Republicans thought it was fine. In contrast, 84 percent of Democrats found the decision to be "inappropriate." The poll found 61 percent of independent voters found the firing to be inappropriate as well."
  4. Nicholas Kristof answers the debate question, is Trump obstructing justice?
    • "Trump acknowledges that he was frustrated by the Russia investigation and that it was a factor in firing Comey. This may not meet the legal test for obstruction of justice, but step back and you see that Trump’s entire pattern of behavior is obstruction of the rule of law and democratic norms."