In recent weeks, some have suggested that President Trump’s controversial interactions with James Comey, the former F.B.I. director, did not constitute wrongdoing. As an ex-criminal defense lawyer and a former federal corruption prosecutor, now joined together as government watchdogs, we beg to differ. Mr. Comey’s sworn statement and answers before the Senate Select Intelligence Committee now provide strong evidence that President Trump committed obstruction of justice. But we have miles to go before that case is legally resolved one way or the other — if it ever is.
The crime of obstruction requires an attempt to block an investigation with corrupt intent. Mr. Comey has now given us direct witness testimony of obstruction by the president in the form of the already famous statement “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.” Mr. Comey repeatedly added in today’s questioning that “I took it as a direction” that “this is what he wants me to do.” In a system governed by the rule of law, shutting down an investigation to benefit a friend — or perhaps, to keep damaging information that friend may know from emerging — is corrupt.
Importantly, Mr. Comey also confirmed the existence of an open investigation at the time of Mr. Trump’s statement — a legal predicate for an obstruction offense. And he added detail to the obstruction pattern that began with President Trump’s demand for “loyalty” and culminated in Mr. Comey’s firing and events immediately thereafter. After the past 24 hours, there can no longer be any doubt that President Trump should be investigated for obstruction. Indeed, Mr. Comey suggested that such an investigation may already have begun: “That’s a conclusion I’m sure the special counsel will work toward, to try and understand what the intention was there and whether that’s an offense.”
Mr. Comey’s testimony also further undercuts the claim by some commentators that the law was not violated because there was no “proceeding” for President Trump to obstruct. F.B.I. investigations are proceedings, and a number of courts have found them to be so in the obstruction context, though the matter is not fully settled. The bureau is also working in connection with a grand jury investigation, as is common in major criminal matters, and the law is crystal clear that obstruction of a grand jury is a crime, as is obstruction of congressional proceedings like the one here. It also doesn’t make sense to suggest that Mr. Trump’s unquestioned legal right to fire Mr. Comey allows him to do so corruptly. Mr. Trump could not, for example, take a bribe from Vladimir Putin to fire Mr. Comey; neither can he do so to benefit a friend or protect himself.
But strong initial evidence is not the same as a slam-dunk case, and Mr. Comey’s testimony also made clear how far we have to go before the question is definitively resolved.
Under probing questioning, with much less senatorial filibustering than is usual, Mr. Comey began answering the many questions that Congress and the special counsel will be grappling with for some time to come. He had to explain how he could be positive the president was giving him a direction (he conceded that was his interpretation). He had to justify why he didn’t tell the president the Flynn request was wrong (he was “stunned”). At one point, Mr. Comey even forgot the exact words the president said to him about Mr. Flynn.
All of this goes to his credibility in what is, at this point, a swearing contest between Mr. Comey and President Trump, who denies having the conversation at all. We believe Mr. Comey. But it will be the job of the special counsel, and of Congress, to decide if his candor, and self-criticism, not to mention his detailed recollections backed up by contemporaneous notes, are credible, and in doing so to look for corroborating, or rebutting, evidence. That will take time.
Perhaps the most important of the outstanding questions concern President Trump’s motives. Why did the president want the Flynn case dropped? Was it simply to do a favor for a friend? Or was it because that friend had information that would be damaging to the president — such as about his potential ties to Russia? What evidence is there of such ties, including in the statements of the president and his sons, or the president’s tax returns? The uglier the motive, the stronger the obstruction case.
Then there is the daunting question of the scope of the possible obstruction: whether the president simply wanted Mr. Flynn off the hook, or whether he sought to shut down the entire F.B.I. investigation into Russian interference with the 2016 presidential election and whether any Americans colluded with Russian agents. President Trump’s expressed desire to “lift the cloud” of the Russia investigation is more ambiguous than his directive as to Mr. Flynn, and Mr. Comey seemed to concede as much under questioning.
President Trump’s obstruction of the Russia investigation, including by firing Mr. Comey, of course merits investigation, but because Mr. Comey is less definitive on this point, it is still early innings here. The same applies to the question of who, if anyone, may have conspired with the president. Ominously for Jeff Sessions, Mr. Comey seemed to hint there were reasons he could not share information with the attorney general, though he could not say what they were in open session.
The final reason this will take time is because of the agonizing legal and political decisions that will need to be made after the evidence has been collected. Having worked with and against the F.B.I. special counsel , Robert Mueller, on previous cases, we know he will wrestle as thoughtfully as the special prosecutor Leon Jaworski did, when he had to decide whether he could indict Richard Nixon if the evidence justified it. Mr. Jaworski believed he could, and we agree, but many others differ.
The alternative, a congressional decision to impeach, if justified, would require many Republicans to turn on their own president. Recall that it took the Republicans years to sour on President Nixon. Today’s Republicans may follow suit, but it will not be quick.
It is easy to imagine the president asking, right about now: Will no one rid me of this troublesome investigation? The answer, Mr. President, is no.