Did President Donald Trump break the law when he allegedly asked then-FBI Director James Comey in February to stop his investigation of former National Security Advisor Michael Flynn?
The question is at the heart of a legal debate a day after Comey disclosed during closely watched congressional testimony that Trump asked him to end his investigation of Flynn’s suspected ties to Russia.
In riveting detail, Comey recounted that after a February 14 counter-intelligence briefing at the White House, Trump told him that he wanted “to talk about Mike Flynn,” saying Flynn “is a good guy” and “I hope you can see your way clear to letting this go.”
Watch: Comey on Trump‘s Word: ‘I Took It As A Direction’
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The allegation raised two sets of questions: Did Trump obstruct justice when he asked for an end to the Flynn probe? And, is it an issue for the courts or Congress to decide?
Marc Kasowitz, Trump’s personal lawyer, said in a statement released after the testimony that “the president never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone.”
Watch: Trump Lawyer: President ‘Never Suggested’ That Comey ‘Let Flynn Go’
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Senators were at odds over the implications of Comey’s testimony. While some Democrats suggested it pointed to obstruction of justice by Trump, Republican members of the panel seized on the fact that the president did not explicitly “direct” the former FBI director to drop the Flynn investigation.
In response to a question, Comey declined to say whether he thought Trump’s conduct amounted to obstruction of justice, saying it was up to Special Counsel Robert Mueller to make that determination.
To Trump’s critics, Comey’s revelations recalled the “Nixon tapes,” secret White House recordings that former President Richard Nixon refused to release during the Watergate scandal, ultimately leading to his resignation in 1974.
Case not ironclad
But the case for obstruction of justice based on Comey’s testimony is far from ironclad, legal scholars say.
While Trump’s alleged interactions with Comey were seen by many as grossly out of line, the Comey testimony did not provide grounds for obstruction charges, these scholars say.
“The president is not facing a particularly compelling case of obstruction for prosecution at this time,” said Jonathan Turley, a professor at the George Washington University School of Law. “This is also not a record that would support impeachment.”
Louis Michael Seidman, a professor of constitutional law at Georgetown University, agreed that the case for charging Trump with obstruction of justice is not there, but he said that Comey’s firing after he refused to carry out the president’s wishes is “a serious matter.”
“No one outside the White House is contesting the fact that that is what happened, that director Comey is telling the truth,” Seidman said. “If he is telling the truth, that means the president has lied about it and that is a further indication he may not be fit to be president of the United States.”
No American president has ever been indicted while in office, though two, Andrew Johnson and Bill Clinton, were impeached but later acquitted.
Legal scholars disagree over whether a sitting president can be prosecuted, but the Justice Department’s Office of Legal Counsel has argued against it, deciding in at least two instances not to indict a president, Seidman said.
Obstruction of justice, or interference with a legal proceeding, such as a criminal investigation, is a crime, but proving it is legally challenging. To demonstrate obstruction of justice, prosecutors must show evidence of “corrupt intent.”
“That’s a very difficult standard to meet,” Turley said.
Andy McCarthy, a former federal prosecutor and now a fellow at the conservative National Review Institute, said that as the head of the executive branch of government, Trump has “prosecutorial discretion” to end an investigation and that he “couldn’t conceivably have thought he was doing something wrong.”
“Therefore, it would be impossible to prove beyond a reasonable doubt that he acted corruptly,” McCarthy said.
Though Trump’s true motivation remains unknown, “it’s perfectly plausible that the president was feeling sympathetic to his former aide who had just resigned and was facing a torrent of criticism,” Turley said.
The U.S. Constitution allows Congress to remove a president from office for “treason, bribery or other high crimes and misdemeanors” through impeachment proceedings in the House of Representatives and a trial in the Senate.
While it is easier to bring an article of impeachment on obstruction charges, the allegation of crimes must be far more detailed than what has been alleged about Trump, Turley said.
In the Nixon case, he noted, the first article of impeachment in the House of Representatives listed obstruction of justice but included “nine separate but rather detailed crimes.”
In the Clinton impeachment case, the House of Representatives dropped an article on obstruction of justice, said Turley, who testified before the House in favor of impeachment.
With Republicans in control of Congress, the prospects of their impeachment of their party leader appear slim. But Turley said impeachment is not always brought for purely political reasons.
In Watergate, he noted that Republicans abandoned Nixon in favor of his impeachment. And today, congressional Republicans are “actively supporting the investigation of Donald Trump,” he said.