Beyond the testimonies of intelligence community leaders, including former FBI Director Comey himself, several legal experts are also in agreement that there’s no legal basis for an obstruction of justice case.
This morning, former independent counsel Ken Starr told CNN that he’s seen no evidence of obstruction.
Ken Starr: No evidence yet that Trump obstructed justice. Ken Starr, the former independent counsel who investigated President Bill Clinton, said Thursday it will likely be hard to show President Trump obstructed justice, and said no evidence made public so far supports that charge. "It's too soon to tell," Starr said on CNN. "From what I have seen, and of course we don't know a whole lot, the answer is no. … "Obstruction of justice is really a very hard crime to make out," he said. "It's not just, you want the investigation to go away, you suggest that the investigation goes away. You've got to take really affirmative action." (Washington Examiner, 6/15/17)
- Starr: Trump’s “language is far removed from a directive.” Starr also said the language Trump used in that talk with Comey probably helps Trump's case. “His literal language was, 'hope,'" Starr said. "And I think that that redounds to the benefit of the president." "He's saying, 'Golly, I sure wish this would go away, it's in the way of my agenda. I need to run the country, and this is a terrible distraction, I hope you can see your way clear,'" Starr added. "That to me, just the language, is far removed from a directive." (Washington Examiner, 6/15/17)
In The Washington Post, former federal prosecutor Andrew C. McCarthy writes that “What Comey described wasn’t obstruction of justice. Here’s why.”
McCarthy: When the FBI and Justice Department “exercise prosecutorial discretion, they are exercising the president’s power.” We like to think of law enforcement as insulated from politics, and we certainly aspire to a politics that does not undermine the rule of law. In our system, however, it is simply not the case that law enforcement is independent of political leadership. The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates. That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do. (The Washington Post, 6/15/17)
- “This was clearly not corruption. And without corruption, there cannot be obstruction.” One can certainly disagree with Trump’s marshaling of the equities involved in proceeding against Flynn. But to weigh them and recommend against proceeding was a legitimate exercise of executive discretion. The president has every bit as much authority to engage in that exercise as his subordinates. And it bears repeating that he did not order a halt to the investigation — though he could have. This was clearly not corruption. And without corruption, there cannot be obstruction. (The Washington Post, 6/15/17)
In The New York Times, FIU constitutional law professor Elizabeth Price Foley writes that “Trump’s Statements Are Not an Obstruction of Justice.”
Foley: Trump’s statements “do not constitute an obstruction of justice.” Widespread howls erupted, including by editors of this paper, asserting that President Trump obstructed justice. But as distasteful as the president’s statements may be, they do not constitute an obstruction of justice. Indeed, if they did, virtually every communication between criminal defense lawyers and investigators would be a crime. (The New York Times, 5/17/17)
- “There is no evidence of a quid pro quo.” Even assuming, for the sake of argument, that Mr. Trump intended an implied offer of continued employment in exchange for Mr. Comey’s dismissal of the Flynn investigation, it would be implausible for Mr. Comey to construe it as such. Mr. Comey was aware that he was an at-will employee who could be fired by the president at any time, for any reason. (The New York Times, 5/17/17)
- If Trump’s purported statements were obstruction, it would “be utterly inconsistent with First Amendment freedoms.” Defending one’s self, client or friend is a natural instinct, and beseeching leniency is not tantamount to obstruction. Holding otherwise would endorse a breathtaking expansion of obstruction, and be utterly inconsistent with First Amendment freedoms. (The New York Times, 5/17/17)
- “Principled objections to Mr. Trump’s policies and leadership style should not blind opponents to the dangers of repeated, knee-jerk calls for criminal prosecution of the president of the United States.” Let the evidence unfold, and reserve serious charges if and when the evidence warrants it. Crying wolf undermines the credibility of the opposition, further divides an already deeply divided country and breeds cynicism about American institutions that is as dangerous to our republic, if not more, than outside meddling. (The New York Times, 5/17/17)
Harvard Law Professor Alan Dershowitz has also explained that the president cannot obstruct justice when he exercises his constitutionally-granted authorities.
ANDERSON COOPER: Thank you. Joining us now is chief political analyst Gloria Borger. Jeff Toobin is back. With us as well is Harvard Law School's Professor Alan Dershowitz. So Professor Dershowitz, you say this is not obstruction of justice by the President and it actually strengthens his position against Director Comey. How so?
ALAN DERSHOWITZ: Well first of all, let's look at the big constitutional picture. The President could have told Comey you are commanded, directed to drop the prosecution against Flynn. The President has the right to do that. Comey acknowledges that. He says in the statement that historically, historically presidents have done that to the Justice Department. But in the last few years we've had a tradition of separation, but that tradition doesn't create crime. Remember also what the President could have done. He could have said to Comey, stop this investigation, I am now pardoning Flynn. That’s what President Bush did in the beginning of the investigation of Caspar Weinberger, which could have led back to the White House to the first President Bush. President Bush on the eve of the trial pardoned Caspar Weinberger, pardoned six people, and Special Counsel Walsh said this is outrageous, he's stopping the investigation. Nobody talked about obstruction of justice. You cannot have obstruction of justice when the president exercises his constitutional authority to pardon, his constitutional authority to fire the director of the FBI, or his constitutional authority to tell the director of the FBI who to prosecute, who not to prosecute. So let's get out of the weeds and let's look at the big constitutional question.
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