Congress could consider actions taken by President Donald Trump regarding former FBI Director James Comey to constitute obstruction of justice warranting impeachment, legal experts tell Media Matters.
Trump has been embroiled in controversy over his firing of Comey, who was leading an FBI investigation into possible collusion between Trump’s campaign and the Kremlin.
On May 16, The New York Times published a bombshell report stating that “President Trump asked the F.B.I. director, James B. Comey, to shut down the federal investigation into Mr. Trump’s former national security adviser, Michael T. Flynn, in an Oval Office meeting in February, according to a memo Mr. Comey wrote shortly after the meeting.”
The memo purports that Trump said to Comey, “I hope you can let this go.”
Last week, Trump himself admitted to NBC’s Lester Holt that when he was deciding whether to fire Comey, he was thinking about “this Russia thing,” which he declared a “made-up story.”
Trump’s conservative media allies -- especially those on Fox News -- have been defending and excusing the president’s actions, arguing that Trump did nothing wrong and ridiculing journalists for supposedly overreacting.
While right-wing media are trying to convince people that what Trump did is no big deal, experts disagree.
Legal scholars who spoke to Media Matters explained that impeachment of a president is a political matter. While a federal statute exists defining obstruction of justice, it would be up to Congress to decide whether Trump’s alleged obstruction of the Russia investigation warrants impeachment as a “high crime or misdemeanor,” of which there is “no settled definition.” (Both Presidents Richard Nixon and Bill Clinton were charged by Congress with obstruction of justice during impeachment proceedings.)
Legal experts told Media Matters that Trump’s conduct could be seen by Congress as obstruction of justice, and Congress could impeach Trump on those grounds.
Erwin Chemerinsky, the newly named dean of Berkeley Law, told Media Matters via email that Trump’s actions “are evidence of obstruction of justice” and that the current situation is “very comparable to what caused Nixon to resign.”
“Obstruction of justice occurs when one ‘obstructs, influences or impedes any official proceeding.’ I think that this warrants a thorough investigation. Certainly a felony is a basis for impeachment. Whether the majority of the House will vote articles of impeachment is a different question,” Chemerinsky added.
Victoria Nourse, a Georgetown University Law Center (GULC) professor and former Obama nominee to the Seventh Circuit, said via email that both actions taken by Trump vis-a-vis Comey could be seen by Congress as obstruction of justice and that those actions could serve as grounds for impeachment.
Regarding Trump’s reported request for Comey to “let it go” concerning the investigation of Flynn, Nourse said, “Of course, in a criminal case, you would have to show POTUS had the ‘intent’ to obstruct, but his own words are making that easier every day.”
“The opposition will deny it, but it’s hard to understand what he meant by ‘letting’ the investigation ‘go’ ... if he did not mean to end it. Perhaps the Comey memo will reveal more.”
John Dean, Nixon’s White House counsel, explained that recent comments by Trump could be seen as obstruction of justice because Trump “explained his state of mind with Lester Holt when he fired [Comey], that this was a phony investigation.”
Asked whether this conduct could be impeachable, Dean responded, “It is, historically. You can make the case that Nixon was impeached for impeding the FBI inquiry into Watergate.” He added, “It is kind of a direct parallel, having the CIA go to the FBI and tell them to shut down is just a little more indirect than Trump saying can you not investigate Flynn, which is the import of that message when he and Comey are speaking.”
David Pozen, a professor of law at Columbia Law School, told Media Matters that if the “serious charges” against Trump “are correct, they look like plausible violations of the president’s Constitutional oath and therefore impeachable offenses.” He added, “But it depends on the facts and, realistically, it depends on the politics.”
Stressing that “impeachment is not a matter decided by judges, it is a political matter decided by representatives,” constitutional law professor Louis Michael Seidman at GULC told Media Matters, “It seems entirely possible that [Trump] made the advance to Comey and fired him because he wanted to stop the investigation because he was afraid of what it would turn up.”
“If that were true, then it would be obstruction of justice,” he concluded.