In his testimony before the Senate intelligence committee today, former FBI director James Comey spoke about a series of interactions with President Donald Trump in which he said the president requested his “loyalty” and pushed him to drop the investigation into former national security adviser Michael Flynn.
If Comey’s testimony is accurate and the president indeed attempted to influence the investigation into Flynn -- who was fired after the White House said he had misrepresented the nature of his contact with the Russian ambassador to the United States -- some say that may constitute an obstruction of justice.
Obstruction of justice is a federal crime in which someone “corruptly” attempts to “influence, obstruct or impede” the “due and proper administration of the law” in a pending proceeding or investigation, according to 18 U.S.Code § 1505.
But after Comey’s testimony this morning, legal experts are split on whether he laid out a potential case for obstruction of justice during his Senate testimony.
Some say “yes,” this could possibly be obstruction of justice
Because Trump seemed to intend to shut down an ongoing investigation into his close adviser, “I think it amounts to obstruction of justice in both the legal and lay sense of the term,” said Peter Schuck, a professor at Yale Law School.
“His constant calls and entreaties to Comey seem like efforts to intimidate and interfere, another element of obstruction of justice” Schuck continued. “Trump's conduct was certainly inappropriate, which many Republicans seem to concede. It is hard to think of an innocent justification for it.”
Some have said that Comey’s telling of a meeting in which the president said “I hope you can see your way clear to letting this go, to letting Flynn go,” is a reason the interaction does not constitute an obstruction of justice -- “hoping” is not a command.
But Ron Kuby, a criminal defense attorney at Ronald Kuby Law Office said, "It’s true that hoping is not a crime. Pulling a gun and telling someone ‘I hope you will give me your money’ kind of is. Trump was not engaging in philosophical musings. The ‘I hope’ is not a defense.”
Anne Milgram, a law professor at NYU School of Law and the former Attorney General of New Jersey, said “the law prohibits influencing, impeding, obstructing an investigation.”
In this case, Milgram said, Trump chose to clear the room when meeting with Comey; asked Comey to let the investigation into Flynn go, which Comey said “he viewed as a directive;" and fired Comey and said it was because of the Russia investigation.
“I can’t say for certain that he should be charged, but I can say that I would investigate this very aggressively,” Milgram said, adding that firing Comey also sent “a message” to the FBI to ease off of investigating issues related to Russia. “That could potentially be seen as a shot across the bow to the entire FBI to stop the investigation.”
Michael Seidman, a criminal law professor at Georgetown University Law Center, said that an expression of “hope” from the president can almost certainly be deemed “an order,” but “the real point is that after Comey didn’t do it, he was fired.”
“This might well satisfy the technical legal requirements for an obstruction of justice, but it’s worth emphasizing that that’s not what really matters,” Seidman said. “What really matters is that this is a disgraceful, unacceptable way for a president to behave.”
Others say no, there is no obstruction of justice based on Comey's account
Some experts told ABC News that assuming Comey's account is all true, President Trump did not unlawfully obstruct justice.
“This seemed to be an uncomfortable and improper conversation that would not, based on usual obstruction cases, sufficiently establish the crime of obstruction,” said Kendall Coffey, a former U.S. Attorney under President Bill Clinton and an attorney with Coffey Burlington, PL.
Coffey said not only was Comey’s testimony not a “smoking gun,” it actually “gave both sides ammunition.”
“It was clear that Comey did not believe those concerns should prompt him to consider resignation as he had considered before in his career,” Coffey said. “And he had no answer for his decision not to promptly report the February conversation.”
But Coffey pointed out that if President Trump is interviewed by Mueller and contradicts Comey, crimes of obstruction and false statements could be alleged if Mueller believes Comey.
“Comey’s testimony was a bit like Al Capone's vault,” said John Lauro, a former federal prosecutor and attorney at the Lauro Law Firm. “There is nothing inside -- no corrupt intent to derail a federal investigation.”
“We learned two important lessons today: A president should not talk to an FBI director about a pending investigation and government officials should not leak confidential information. We all have to wonder -- where are the responsible adults?” Lauro said.
Andrew McBride, a former federal prosecutor and an attorney with Perkins Coie LLP, said that if Trump were a private citizen, it would be reasonable to pursue an obstruction of justice charge if a prosecutor wanted to.
However, since "Trump was Comey's boss, he could have simply ordered Comey to lay off Flynn,” McBride said, which he argued “makes it harder to prove obstruction.”
“Trump is in a unique position to tell Comey what to do, so he is not in the same position as a private citizen,” McBride said.
David B. Rivkin Jr., an attorney with Baker & Hostetler LLP, said that none of Comey’s testimony could justify prosecuting President Trump and “do not amount to obstruction of justice or any other violation of law."