Washington (CNN)In the wake ofreports that President Donald Trump told former FBI Director James Comey to end a probe into former national security adviser Michael Flynn, questions are being raised about whether the President’s actions amounted to obstruction of justice.
“‘Close it down’ is an instruction to stop investigating President Trump’s campaign,” CNN senior legal analyst Jeffrey Toobin told CNN’s Wolf Blitzer Tuesday. “Richard Nixon was impeached in 1974 for telling the FBI to stop an investigation of his campaign. That’s what Watergate was.”
Here’s a look at the precise legal definition of the term — and its potential legal ramifications for a president of the United States.
What is obstruction of justice?
Obstruction of justice is a federal offense that covers any attempt by someone to “influence, obstruct, or impede” — including “corruptly” — the “proper administration of the law” in a pending proceeding, including by Congress.
If Comey’s memo is accurate, is it obstruction of justice?
“Obstruction of justice is not a black-and-white offense, so reasonable minds may well disagree about whether asking Comey to go easy on Flynn rises to the level of what federal law prohibits,” said Steve Vladeck, CNN legal analyst and professor of law at the University of Texas School of Law.
“But whether the President’s conduct is or is not within the letter of the law is irrelevant; there’s a really good reason why, for generations, presidents from across the ideological spectrum have respected the principle of not interfering in federal criminal investigations. That President Trump seems wholly indifferent to this principle, or the potentially devastating consequences of its demise, is the real scandal here.”
Andrew McCarthy, a former federal prosecutor who writes for the conservative National Review, said it’s premature to judge whether what has been reported rises to the level of obstruction of justice.
“A prosecutor wouldn’t make a decision on the basis of one hearsay line in a memo that has not been publicly available and that no one knows the context of,” he said.
Sources: Trump asked to end Flynn investigation
“For example, if the President said to Comey, ‘Listen, I’m not telling you what to do, do what you think is right, but I really hope you can let this go on Flynn because I think he’s a great guy,’ there’s a lot of people who think that would be an inappropriate statement. There’s a difference between inappropriate and criminal,” McCarthy said.
He added, “I do think obstruction of justice, to anyone who has had to prove it in court, is not easy. It has a lot to do with intent, with the context in which things are said and perhaps, the most important word in the statute: ‘corruptly.’ That means you not only have to prove that the person knew what he was doing was unlawful, but that he acted with a specific purpose to undermine a proceeding.”
Can a president be indicted?
Legal experts point to two opinions written by the Department of Justice’s Office of Legal Counsel (OLC) in 1973 and 2000, both concluding that indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.
Here’s the conclusion from the 2000 memo written by then-assistant Attorney General Randolph D. Moss:
“Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
But McCarthy questions whether the OLC memos would be binding on a special prosecutor.
And William Yeomans, a fellow in Law and Government at American University Law School, noted the OLC memos are the view of the executive branch: “The OLC makes law for the executive branch; their opinions are not binding anywhere else; the courts are not bound by OLC opinions; this issue has never been addressed by a federal court.”
Yeomans, a 26-year veteran at the Department of Justice, added: “The question of whether criminal indictment can precede impeachment has never been addressed by a court — it’s an open question.”
But what about the political process of impeachment?
Article II of the Constitution provides for removal of the President from office “on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”
“Obstruction of justice is both a federal crime and a well-established ground for impeachment,” Yeomans wrote last week. “Under federal statutes, it is a crime to act with the specific intent to obstruct or interfere with a judicial or congressional proceeding, or a proceeding before a federal agency (such as an investigation). The proceeding must be pending at the time of the conduct and the defendant must know it.”
Yeomans, in a recent op-ed for The Hill, wrote that charges of obstruction of justice have been a “staple” of the last two substantial attempts to impeach a president.
Schiff: Comey memo allegations disturbing
After the President fired Comey, Harvard Law School’s Larry Tribe told Slate: “In my view, we have clearly passed that point, both as a technical matter” under law, “and, much more importantly, as a matter of what might be called the “common law” of presidential impeachment, as established principally by the House impeachment and Senate trial of Bill Clinton and by the articles of impeachment of Richard Nixon.”
After the latest news broke, Josh Blackman, an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law, called the latest news “problematic.”
“If, in fact, the President asked Comey to drop the investigation, it may have been inadvertent, but that was an attempt to obstruct justice,” he said.
“Congress can define high crimes and misdemeanors however it wishes, (but) it is entirely appropriate to reference definitions of crimes from the US Code such as obstruction of justice.”