We’re In Obstruction Of Justice Purgatory


Hours after James Comey’s opening remarks were released, the public was flooded with hundreds of professional “opinions” on how Trump’s actions were absolutely Obstruction of Justice or absolutely not.

What we didn’t hear or read, where is a defined redline when one starts committing Obstruction of Justice? Trump telling Comey, “Drop the Flynn investigation or You’re Fired” is obviously problematic but according to Comey, he didn’t say that. According to Comey, Trump did say “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” So is this problematic?

Who was Trump hoping for? Himself? Was Trump hoping Comey would let it go for Flynn’s sake? Was he hoping for Comey’s sake? Hell, Trump’s words could have sounded threatening given the right tone and delivery. There are a handful of ethically iffy encounters in Comey’s opening testimony but each of those moments offer a gray area that can be interpreted by ones own personal bias.

Besides sounding like a“choose your own adventure” of context here, there’s the broad federal definition of Obstruction of Justice making the interpretation even more difficult. There are potentially 21 applicable statutes within Title 18 — Crimes and Criminal Procedure, Part I — Crimes, Chapter 73 — Obstruction of Justice. The most relevant at the moment is below, but a cursory review does little to narrow down that defined redline for whether Trump has committed Obstruction of Justice.

18 U.S. Code § 1505 — Obstruction of proceedings before departments, agencies, and committees

…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 offenses involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. ”

Some elements of the statute are evident — albeit there are other elements open to interpretation. Based on what we know of Comey’s testimony — was Trump threatening? Was he seeking to impede the Flynn investigation? What would that look like? Obviously, a straight forward demand to drop the investigation would be impeding, but per Comey’s statement Trump danced around the request. So ultimately, there is not enough evidence to prove Obstruction of Justice.

In all the commentary since Comey’s statement was made public, we have heard back and forth about why or why not the actions outlined qualify as Obstruction of Justice. But we didn’t hear anybody mention a defined redline, because there is just no objective line. In this current environment, there isn’t a single voice on this matter which is offering some non-objective, non-political commentary.

Compare the legal opinions of Jeffrey Toobin and Bill Mitchell. Traditionally in a legal discussion this isn’t a fair comparison — Jeffrey, a senior analyst on CNN, has a Juris Doctorate, and Bill, a right-leaning radio host, is just uniquely charming. But, regardless of legal experience, both have already dug in their heels on the Obstruction of Justice fight.

We have forthcoming hearings to inform Congress and the public regarding the current investigation and before Comey has even answered one question numerous political commentators are proclaiming Trump did or did not obstruct justice. But, it’s all just conjecture at this point.

There is only one substantive reason to argue the legality of Obstruction of Justice — politics. Political commentators are going to continue their public battlecries of guilt or innocence, all in an attempt to move public opinion one way or another. Remember none of the commentators today have the answer. It just is not clear enough. So we inevitability remain in Obstruction of Justice purgatory for the foreseeable future.