HEATHER CHILDERS (CO-HOST): Let's begin with the president's words to [former FBI Director James] Comey, and in that February meeting, could they constitute obstruction of justice?
GREGG JARRETT: It depends entirely, Heather, on what the president said in the meeting. Comey wrote a memo memorializing the conversation, gave it to a couple of colleagues, who then read it to a reporter. And the memo allegedly quoted Trump as saying, “I hope you can let this go.” Well, hoping that someone will be cleared is not the same thing as directing and ordering them to end an investigation or to clear somebody. It's an aspirational expression, hoping events will turn out well for [former national security adviser] Michael Flynn. It's kind of like, “I hope it doesn't rain tomorrow.” So that's what Comey's testimony is. It probably is not obstruction.
CHILDERS: So legally, speaking of that, what does the obstruction of justice statute require, legally?
JARRETT: Well the criminal statute requires proof that somebody actually tried to influence, impede, or obstruct the due administration of justice. Importantly, it also requires one more word. It's called “corruptly,” and that last word has special meaning in the law. Supreme Court has addressed it. They defined it as -- we'll put it on the screen: “wrongful, immoral, depraved, or evil.” So again, hoping that somebody can let it go is probably too ambiguous to constitute a corrupt intent. The Supreme Court set a very high bar. It's very narrow, hard to prove.
CHILDERS: So here's the big question a lot of people are asking. If Comey thought that the president was attempting to obstruct justice, did he have a duty to report it?
JARRETT: Absolutely. In fact, under the law, Comey is required to immediately inform his superiors at the Department of Justice. Failure to do so is actually a crime in and of itself. It's called misprision of felony. So Comey is surely going to be asked by the senators, did you notify anybody at DOJ? We don't know the answer, but there's been reporting that he has done so, which may suggest he thought, “Well, the president's language may have been troubling, but I didn't think it rose to the level of obstruction of justice.”
