While the GOP establishment, Democrats, and media have the knives out for President Donald Trump after his firing of ex-FBI Director James Comey—and the subsequent leaks from Comey associates portraying alleged conversations between the two—legal experts are skeptical that there is any case to be made for an “obstruction of justice.” Professor emeritus at Harvard Law School Alan Dershowitz writes in the New York Daily News that “on balance, the obstruction case against President Trump is not strong, as a matter of law”:
In more recent times, Presidents John Kennedy and Lyndon Johnson interacted with FBI director J. Edgar Hoover. It is only in subsequent years, especially since Watergate, that a wall of separation has divided the President and the FBI. But this wall is built largely on tradition and internal Justice Department guidelines, rather than on the criminal law.
It thus follows that when evaluating the possibility of criminal charges having been committed by President Trump — the alleged obstruction of justice — this historical context must be considered.
Additionally, constitutional issues regarding the power of the President to direct the FBI would only be raised if the facts established that anyone other than the President — a lay citizen — would be guilty of obstruction of justice in a comparable situation. That conclusion might well depend on what, precisely, the President asked the FBI director to do.
In the New York Times, author and professor of constitutional law at Florida International University College of Law Elizabeth Price Foley states that President Trump’s alleged statements to Comey do not constitute an obstruction of justice. “Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime,” she writes:
Section 1510 of Title 18 of the United States Code addresses obstruction of criminal investigations. It is a narrow statute, criminalizing only willful acts “by means of bribery” that have the effect of obstructing the communication of information about crimes to federal investigators. Even assuming Mr. Comey’s memo is accurate, there is no indication that President Trump willfully attempted to bribe the F.B.I. director. As the Supreme Court stated in United States v. Sun-Diamond Growers of California, “for bribery there must be a quid pro quo — a specific intent to give or receive something of value in exchange for an official act.”
There is no evidence of a quid pro quo. Even assuming, for the sake of argument, that Mr. Trump intended an implied offer of continued employment in exchange for Mr. Comey’s dismissal of the Flynn investigation, it would be implausible for Mr. Comey to construe it as such. Mr. Comey was aware that he was an at-will employee who could be fired by the president at any time, for any reason. Indeed, when President Obama endorsed Hillary Clinton for president in June 2016 — during the height of the F.B.I.’s investigation into Secretary Clinton’s private email server — it would have been similarly implausible for Mr. Comey to construe Mr. Obama’s pro-Clinton remarks as an implicit offer of continued employment, in exchange for dropping the Clinton investigation. Even though Mr. Comey dropped the investigation one month later, he presumably knew that although it would please both Mr. Obama and Mrs. Clinton, it would not insulate him from being fired.
But even if one adopted an unprecedentedly broad conception of bribery, Mr. Trump’s purported statement still would not violate Section 1510. The statute is designed to preserve the free flow of information, prohibiting only acts that obstruct investigators’ access to information. Bribery of a potential witness, for example, is behavior prohibited by Section 1510. But telling the F.B.I. director that someone is a “good guy” and expressing the hope that an investigation will cease does not obstruct the free flow of information.
Dershowitz also appeared on CNN Wednesday to say “nobody will ever indict the sitting president for obstruction of justice.”