President Trump gave an interview yesterday in which he stated to NBC’s Lester Holt:
[R]egardless of recommendation I was going to fire Comey. Knowing, there was no good time to do it. And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have one. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. [….]
That’s a pretty clear admission that he was specifically trying to derail the investigation into his campaign’s possible collusion with Russia when he decided to fire Comey. It completely walks back the White House’s original story that Trump acted on independent recommendations from Deputy AG Rod Rosenstein and AG Jeff Sessions. Rosenstein in particular was livid that he was being portrayed as the person whose idea it was to terminate Comey. He threatened to resign over it, according to reports. And Trump’s statements to Lester Holmes certainly seem to confirm reporting that Trump was livid over the Russia investigation, and that he decided to fire him, but before doing so instructed Rosenstein and Sessions to set forth the written case for Comey’s firing.
In other words, Trump’s purpose in firing Comey was to stall or derail the Russia investigation. And he enlisted his two top officials at the DOJ to come up with a plausible pretext to do so. What they came up with had nothing to do with the Russia investigation, since there was nothing improper about conducting that investigation. It is also important to note Sessions’ direct involvement in this process. He had recused himself from both the Clinton email investigation and anything related to it, and also the Russia investigation. Yet he ostensibly acted in violation of both of those self-recusals.
Therefore, Trump acted to stymie an ongoing federal counterintelligence investigation that he was the subject of, by firing the person heading up the investigation. And he enlisted his attorney general, who was supposed to have nothing to do with either the Clinton investigation which was the subject of his discharge recommendation, or the Russia investigation, in order to do so.
Frankly, the only way I can look at this is as a frank admission of a crime. Obstruction of justice is the impediment of governmental activities. There are a host of federal criminal laws that prohibit obstructions of justice. The six most general outlaw obstruction of judicial proceedings (18 U.S.C. 1503), witness tampering (18 U.S.C. 1512), witness retaliation (18 U.S.C. 1513), obstruction of congressional or administrative proceedings (18 U.S.C. 1505), conspiracy to defraud the United States (18 U.S.C. 371), and contempt (a creature of statute, rule and common law). Many of these offenses may also provide the basis for racketeering and money laundering prosecutions, and each provides the basis for criminal prosecution of anyone who aids and abets in or conspires for their commission.
Section 1505 seems to be the applicable statute here. It provides, in pertinent part:
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
Generally, a defendant may be found guilty under section 1505 if the government establishes that: (1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. United States v. Price, 951 F.2d 1028, 1030-31 (9th Cir. 1991); United States v. Sprecher, 783 F. Supp. 133, 163 (S.D.N.Y. 1992).
Trump’s conduct meets the elements of the offense. There is a “pending proceeding”, that’s well known. Comey publicly announced that the FBI was involved in an ongoing investigation of Russian election hacking and the Trump campaign’s possible collusion with them on March 20. There is also no question that Trump knew of that investigation – it was on cable news, after all. And he corruptly endeavored to influence or obstruct that proceeding by firing the person in charge of it.
Sessions’ conduct fills this bill as well, since he was instructed to come up with a pretext to fire Comey and did so, with the knowledge that the purpose was to get rid of the person in charge of the Russia investigation he had to recuse himself from.
From a prosecutorial standpoint, it is clear that the conduct in question meets the definition of the criminal offense at issue. Yet, there has been nothing but a collective shrug from Congressional Republicans. As Paul Krugman notes in his column today, “almost an entire party appears to have decided that potential treason in the cause of tax cuts for the wealthy is no vice.” In the face of evidence that presidential power has been used to cover up foreign subversion of the US Government, Republicans have decided to do nothing.
Their only principle is retaining power. Not conservatism, not anything else. Republicanism has descended into totalitarianism, and the party is willing to live with anything, no matter how vile or treasonous, which will keep them in power. It is time to recognize this.