May 17, 2017

ELIZABETH PRICE FOLEY IN THE NEW YORK TIMES: Trump’s Statements Are Not an Obstruction of Justice.

Widespread howls erupted, including by editors of this paper, asserting that President Trump obstructed justice. But as distasteful as the president’s statements may be, they do not constitute an obstruction of justice. Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime. . . .

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.

Another, broader federal obstruction statute is Section 1505 of Title 18, but even this statute does not fit. Specifically, Section 1505 declares that anyone who “corruptly” endeavors to obstruct the proper administration of law “under which any pending proceeding is being had before any department or agency of the United States” is guilty of a felony. Even putting aside the difficulty of proving, beyond a reasonable doubt, that President Trump’s brief and generalized words evinced the necessary “corrupt” mind-set, Section 1510 applies only to a “pending proceeding.”

Read the whole thing. Also note that the Obama Administration made sure that Lois Lerner — who ran a corrupt, political effort to target political opponents using the power of the federal government — didn’t face charges. This was not called obstruction of justice, but “prosecutorial discretion.”

Plus: “Principled objections to Mr. Trump’s policies and leadership style should not blind opponents to the dangers of repeated, knee-jerk calls for criminal prosecution of the president of the United States. Let the evidence unfold, and reserve serious charges if and when the evidence warrants it. Crying wolf undermines the credibility of the opposition, further divides an already deeply divided country and breeds cynicism about American institutions that is as dangerous to our republic, if not more, than outside meddling.”

The childish response of Democrats — and “NeverTrump” Republicans — to the 2016 election has done more damage to American politics and institutions than any foreign meddling could do.