Opinion

Opinion

How a prosecutor would interpret Trump Comey talks

Posted June 8

It is tempting to read former FBI director James Comey's prepared statement to the Senate Select Committee on Intelligence and conclude that the President of the United States obstructed justice by attempting to influence, impede, and halt the FBI's counter-intelligence investigation involving potential collusion between Russia and members of Donald Trump's presidential campaign. Indeed, it paints an ominous picture of a President who fundamentally misunderstands the apolitical independence the FBI requires to be credible and effective.

But it also portrays in Comey an FBI director who showed trepidation and guarded suspicion in his interactions with a potential investigation target -- and who strangely acquiesced to the President's demands for assurances. And while James Comey has made no secret of his reluctance to interact socially with the president, Comey seems far more condemning of the President's breach of protocol and disregard for the chain of command within the Department of Justice than the President's alleged attempts to obstruct justice.

Has the President attempted to influence the FBI's decision to pursue an active investigation? Yes, repeatedly. But as much as the media and other observers have focused their attention on whether or not the president obstructed justice, it would be shortsighted and legally unproductive for any prosecutor to be that single-minded if this were any other case. If we were talking about a garden variety investigation of an ordinary citizen, obstruction of justice would not be an end game, it would be a starting point, Prosecutorial discretion is not simply deciding whether a crime has been committed, but deciding whether and which crimes to charge, and obstruction of justice is often an additional charge used to buttress other charges. Though the circumstances are decidedly different when the case involves the President of the United States, to focus exclusively on obstruction of justice after reading Comey's statement is still to miss the bigger picture, which could involve much bigger offenses.

Yes, obstruction of justice is also used as a stand-alone charge, and has formed the basis of articles of impeachment for both Presidents Nixon and Clinton. But, in this case, the endgame is continuing to investigate possible collusion between the Trump campaign and a foreign power.

The term collusion is an intentionally nebulous term used to describe an investigative inquiry, not a criminal violation in and of itself. An investigation into collusion may yield evidence of activities that are indeed crimes. But settling for a charge of obstruction of justice would be like seeing a roadblock with a sign that reads, "Nothing to See Here, Folks," and indeed deciding to look away instead of exploring further. It would render the aforementioned roadblock effective.

Reading Comey's prepared statement, it is clear that he viewed the President's communications as suspicious roadblocks which he felt compelled to indulge. The question is whether Comey 's indulgence was a strategic decision to give the President enough latitude to lead the FBI to the elusive proof, or whether the indulgence was a sign of weakness. In any event, with each attempt to reroute the FBI investigation, the President's actions became increasingly counterproductive to his goal of ending the inquiry. Instead, he invited (if not created) further suspicion. If Comey's statement is any indication of his testimony, it seems the President's roadblocks may be his administration's own insurmountable stumbling blocks.

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