A Closer Look at Top GOP Talking Point for Obstruction By Luke Perry
The formal Republican talking points on President Trump being investigated for obstruction of justice provides five “top takeaways.” This piece will examine the first: “There is no case for obstruction of justice. This point has been made by legal scholars from both sides of the aisle over and over again.”
Most law professors commenting on this issue have suggested that Trump may have intended to interfere with the FBI investigation of Michael Flynn, so further investigation is merited. As Jimmy Gurule, (Notre Dame) explained, “if Trump fired Comey because he was doing his job of investigating the Russia connections too well, not well enough as Trump claimed, that puts the President “within the range of obstruction of justice charges.”
A second consideration is the request for loyalty made by the President. If Trump “was attempting to intimidate Comey or exact loyalty from him in connection with the investigation,” Peter Shuck (Yale University) explained, "that would be obstruction of justice.” In turn, John Q. Barrett (St. Johns University), described Comey’s testimony as “a piece of serious evidence of possible criminality” and “plainly a basis for criminal investigation and evaluation.”
A third consideration are the memos Comey wrote documenting his conversations with the president. Susan Low Bloch (Georgetown University) believes the memos suggest Trump might have been trying to obstruct justice. These alone don’t constitute obstruction, but do merit further investigation.
A fourth consideration is the nature of proof surrounding intent. Bruce Green (Fordham University) emphasized how "corrupt intent" can only be proven circumstantially. One might infer Trump had "a corrupt intent rather than an innocent one” since he asked others to leave the room in speaking with Comey, though additional evidence would be necessary to prove this.
Green is skeptical that any rational person would seek to obstruct justice with the FBI director, but remarkably, the immediate response of the Speaker of House, Paul Ryan, suggested the president “wasn't steeped in the long-running protocols that establish the relationships between DOJ, FBI and White Houses,” because he is “new to this." This raises the prospect that Trump may have engaged in inappropriate behavior due to ignorance, not malice.
A fifth consideration is the lack of quid pro quo. Elizabeth Price Cooley (Florida International University) believes that President Trump did not obstruct justice absent evidence that Comey would lose his job for complying to Trump's request. Others, such as Laurence Tribe (Harvard University) believes the request for loyalty in itself obstructed justice coupled with his “none-too-subtle threat that Comey would regret any decision to disseminate his version of his conversations with Trump.”
While it’s accurate to say that law scholars don’t unanimously agree Trump obstructed justice, many clearly believe there is enough evidence that warrants further investigation, which appears to be exactly what Special Counsel Robert Mueller is doing.
Luke Perry (@PolSciLukePerry) is Professor of Government at Utica College. His column Sound Off! critiques various aspects of American politics.