California Forum

Comey made the case that Trump obstructed justice. Now what?

The Senate Intelligence Committee hears from fired former FBI Director James Comey.
The Senate Intelligence Committee hears from fired former FBI Director James Comey. The Washington Post

There is only one possible conclusion from two days of dramatic hearings before the Senate Intelligence Committee: that there is credible evidence that President Donald Trump engaged in obstruction of justice by trying to impede the FBI’s investigation into illegal activities of top Trump campaign and administration officials.

The most basic tenet of the rule of law – that no one, including the president, is above the law – requires a thorough and independent investigation. Yet, it is unclear what happens next and whether there will be such an investigation or who will conduct it.

Obstruction of justice occurs when one “obstructs, influences or impedes any official proceeding.” The evidence seems strong that Trump acted to impede the FBI investigation into possible illegal activities by Michael Flynn and others in connection with Russia’s attempts to influence the 2016 presidential election.

If the Republican-controlled Congress will not thoroughly investigate the president, who will?

Former FBI Director James Comey, in his written and oral testimony at the hearing, described the president trying to end an ongoing criminal investigation. Comey detailed how Trump asked all of his top advisers to leave a February 14 meeting in the Oval Office so he could be alone with Comey.

After explaining that he wanted to talk about Flynn, Trump said, “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.”

At the hearing, Comey said that he “took it as a direction.”

It also appears that the firing of Comey was obstruction of justice in that it was done to end a pending criminal investigation. After he fired the FBI director, Trump told Lester Holt of NBC “this Russia thing” was on his mind when he made the decision. The New York Times reported that Trump told two Russian officials that Comey was fired to end “pressure” from the investigation concerning Russian influence in the election.

Underlying all of this, there is strong evidence that top officials in the Trump campaign and administration violated federal laws. Michael Flynn apparently acted illegally in not registering as an agent of a foreign government and in not disclosing income received from Russia. Jared Kushner may have violated the Logan Act, which prevents private citizens from engaging in negotiations with foreign governments, in what he told Russian officials about an end to sanctions.

There seems little doubt that Attorney General Jeff Sessions lied to Congress, which is a federal crime, in denying contacts with Russian officials which later were documented to have occurred.

So now what?

All of this demands that there be a thorough, impartial investigation. Special Counsel Robert Mueller has been appointed to do this, but the scope of his role, and especially whether it includes investigating criminal activity by Trump, is unclear.

One of the more disturbing moments of the hearings occurred on Wednesday when U.S. Sen. Kamala Harris repeatedly asked Deputy Attorney General Rod Rosenstein if he would give full independence to Mueller in the Russia probe. Rosenstein refused to do this and the chair of the committee, North Carolina Senator Richard Burr, cut Senator Harris off.

The law is unresolved as to whether a sitting president can be indicted or whether impeachment is the sole remedy. In March 1974, the Watergate grand jury named Richard Nixon an unindicted co-conspirator because it thought that it could not indict a sitting president. Constitutional scholars are divided on this question.

The law is unresolved as to whether a sitting president can be indicted or whether impeachment is the sole remedy.

It is crucial at this stage that Mueller conduct a full investigation into whether crimes were committed, including by the president. At the same time, there is enough evidence to justify a House committee conducting an investigation as part of determining whether to vote articles of impeachment.

Apart from whether crimes were committed, the evidence is compelling that Trump engaged in a serious abuse of the office in trying to end a criminal investigation and in insisting that the FBI director pledge loyalty to the president above all else.

Ideally, all of this would be bipartisan. Whether Trump violated the law or abused the office should not be a political question. But the hearings were disquieting in their partisanship, with Republican senators trying to minimize any accusations of wrong-doing against the president.

That then leads to the most important question: If the Republican-controlled Congress will not thoroughly investigate the president, who will? How will the country be assured that no one, including the president, is above the law?

Erwin Chemerinsky is the founding dean and distinguished professor of law at University of California, Irvine, School of Law. He can be contacted at echemerinsky@law.uci.edu.

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