The dirty deed has been done – Trump canned the head of the FBI, the guy heading the only credible investigation of Trump. Is this obstruction of justice?
Before looking at this from a legal point of view, consider the policies underlying the law. A dude who is the subject of an investigation has control over who leads the investigation. He can fire the leader of the investigation for any or no reason. And if he doesn’t like the replacement, he can fire him too. That smells bad.
From a legal point of view, it comes close to an obstruction, but you need something more. The action has to have a material effect on the investigation itself. The firing of the leader of an investigation does not automatically have that effect. So you get Harvard law professor Mark Tushnet saying that from a legal point of view, we do not have obstruction yet.
… as a technical matter, Trump’s firing of Comey is not an obstruction of justice, so long as there is somebody to step in and continue the investigation. I think an obstruction of justice has to be interfering with the investigation itself, in a direct and material way. For example, destroying evidence or making false statements to investigators.
And this is where things get interesting. Notice first that Mark assumes that the replacement continues the investigation. In other words, if the replacement does anything other than continuing the investigation, you open the door to the claim that the firing was obstruction. One other thing. The firing did not occur in a vacuum. Trump has done a number of other things that cumulatively have affected the investigations of his conduct. It is possible to claim that those actions need to be seen as a whole and the effects judged from all of the above.
In light of that last comment, consider this lead sentence of a HuffPo article today
When President Donald Trump fired FBI Director James Comey on Tuesday, it was the latest in a months-long string of actions that have undermined or compromised every major investigation into alleged Russian interference in the 2016 presidential election and whether Trump campaign associates colluded with Moscow.
And at the end of the day, Mark is right that this doesn’t matter. Trump can be impeached and convicted even if what he did would fail to convince a judge and jury that he committed a crime. That is because impeachment is a political rather than legal process.
The key question that we need to focus on is when republicans in congress begin to see that Trump’s actions that prevent us from getting to the bottom of a matter that has national security implications have and continue to damage the country. In my own view, that threshold was passed a while back.
What do you think?