In order to make bold claims that someone broke the law, individuals must first actually understand the law and facts surrounding the case…
Political pundits, some politicians, and the media are trying to make the case that President Trump is guilty of obstruction of justice. The legal definition of obstruction of justice under the Federal statutes is expansive. The part of the statute that applies in this instance is the following:
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.
It is important to look at the requirements for “corruptly persuades.” The term “corruptly persuades” does not include conduct which would be misleading conduct, but for lack of a state of mind.
As used in section 1505 of the statute, the term “corruptly” means: acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
There is an omnibus statute that also deals with obstruction of justice. The courts often observe that to convict under this omnibus or “catchall” provision, the government must prove beyond a reasonable doubt:
(1) that there was a pending judicial proceeding and,
(2) that the defendant knew this proceeding was pending and,
(3) that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.
Some also assert that the obstruction must be material to the matters before the judicial proceeding. As for the first two elements, the Supreme Court has maintained for over a century that “a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court.”
Mr. Flynn was not subject to any pending prosecution at the time.
After President Trump fired Director Comey, which he has absolute authority to do, a new Acting FBI Director was appointed. Acting Director Andrew G. McCabe, at a hearing on May 11 before the Senate Intelligence Committee, was asked by Sen. Marco Rubio whether “the dismissal of Mr. Comey in any way impeded, interrupted, stopped or negatively impacted any of the work, any investigation, or any ongoing projects at the Federal Bureau of Investigations?”
McCabe responded, “The work of the men and women of the FBI continues despite any changes in circumstance, any decisions. There has been no effort to impede our investigation to date. Simply put, sir, you cannot stop the men and women from the FBI from doing the right thing, protecting the American people and upholding the Constitution.”
From what we know, the comment President Trump may have made to then FBI Director Comey was, “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.”
It is reported Mr. Comey did not say anything to Mr. Trump about curtailing the investigation, replying only: “I agree he is a good guy.”
In this context, President Trump was merely expressing his feelings about Mr. Flynn. He did not direct the investigation to be closed. He said he hoped the FBI would let it go, but did not order them to do so.
At this point, there is no smoking gun. In fact, there is no gun at all, just political spin and partisan bickering. The spin on the conversation is dependent on which political party is talking. If one is able to take their Elephant or Donkey jacket off, it is very easy to see this was President Trump expressing his respect for Flynn, nothing else.
