Obstruction of justice: What it is and why Trump should care

Benjy Sarlin
FBI Director James Comey testifies before the House Intelligence Committee hearing into alleged Russian meddling in the 2016 U.S. election, on Capitol Hill in Washington, U.S., March 20, 2017.
Joshua Roberts | Reuters

Democrats and even some Republicans are warning that President Donald Trump may be in jeopardy if reports prove accurate that he allegedly interfered with an FBI investigation.

At the center of the maelstrom are accusations that the president may have engaged in "obstruction of justice," a federal offense that involves intentionally trying to derail an investigation. But the situation is further complicated by the unique position held by the president, whose actions — according to one prominent legal theory — can only be prosecuted in office by Congress with impeachment.

On Wednesday, Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel to oversee investigations into Russia's role in the 2016 election. Mueller is a widely respected figure whose role puts the probe further out of the White House's reach.

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As lawmakers struggle to process the fast-moving story, let's take a moment to review the basics of what the accusations around Trump mean and how things could proceed if more is found.

What is obstruction of justice?

There are a variety of federal crimes related to obstruction of justice, from threatening jury members to lying to investigators. In Trump's case, reports surrounding his behavior toward former FBI Director James Comey could feed into a broad statute targeting anyone who intentionally "obstructs, influences, or impedes any official proceeding, or attempts to do so."

The latest allegations around Trump set off alarm bells because they could potentially be construed as Trump attempting to push Comey away from an investigation into his former National Security Adviser Michael Flynn.

President Donald Trump waits to speak during the National Peace Officers Memorial Service on the West Lawn of the U.S. Capitol in Washington, U.S., May 15, 2017.
Kevin Lamarque | Reuters

What happens if it is found the president broke the law?

Charging the president with a crime is not like charging the average citizen with a crime, or even other top White House officials.

"Whether or not one can indict criminally a sitting president is an unanswered question," Susan Bloch, a constitutional law professor at Georgetown, told NBC News. "It's never happened and people are not sure whether it can."

While it's never been tested in court, many legal scholars, including Bloch, argue that the president is constitutionally protected from criminal prosecution as long as they occupy the White House. The prevailing opinion was expressed in a 1973 memo by President Richard Nixon's Solicitor General, Robert Bork, who argued that then-Vice President Spiro Agnew could face charges stemming from his time as governor of Maryland, but that a president could only be charged after leaving office.

Instead, the job of prosecuting a president would likely be left to Congress. If investigations into Trump's conduct turned up strong evidence of wrongdoing, the House could vote to impeach. The Senate would then try the president and, if two-thirds of members agreed, remove him from office.

But Congress is not a normal jury and the process could turn on political considerations as well as legal ones.

For one, the president's party currently controls both the House and Senate, which sets the bar high for any move toward impeachment. But even if Democrats were to take over, there could be factors that cause them to hesitate as well.

Rep. Adam Schiff (D-CA), the ranking Democrat on the House Intelligence Committee, suggested on Wednesday that Congress would consider the national mood toward Trump along with any hypothetical charges.

"Would the country, would the Congress, both Democrats and Republicans, view the president's conduct so serious as to be disqualifying? Or would it be viewed as just a way to nullify the election by other means?" Schiff said on MSNBC's "Morning Joe." "That's the ultimate test."

Has anything like this happened before?

The last two presidents threatened with impeachment, Bill Clinton and Richard Nixon, both faced charges of obstruction of justice along with other accusations.

In Clinton's case, he was found not guilty. Nixon resigned before the process could play out, but the House Judiciary Committee had already advanced articles of impeachment with bipartisan support. President Gerald Ford, who took over, subsequently pardoned Nixon.

It's notable that in Nixon's case, the "smoking gun" recording that preceded his resignation included audio in which the president appeared to order an aide to convince the FBI to drop its investigation of the Watergate break-in.

Michael Gerhardt, a law professor at the University of North Carolina who has written a book on the impeachment process, said there could be parallels between Nixon and Trump, but it was too early to know for sure. The charges against Nixon were far more extensive and included accusations of abuse of power.

"It doesn't mean what Trump did is not a problem, but the facts are different," Gerhardt said.

How does the latest news fit into this?

Let's go over the most recent reports: According to a source close to Comey, the former FBI director wrote a memo documenting his meeting with Trump on February 14. The existence of the memo was first reported by The New York Times and confirmed NBC News.

The meeting came the day after Trump had fired Flynn for discussing sanctions with Russian Ambassador Sergey Kislyak and misleading Vice President Mike Pence about the conversation. According to the memo, Trump spoke to Comey alone at the end of their meeting and said, "I hope you can see your way clear to letting this go, to letting Flynn go." The White House has denied anything improper.

Alex Whiting, a Harvard law professor and former federal prosecutor, told NBC News that the account of the Comey meeting was a "game changer" because it could show that Trump not only acted inappropriately but also tried to block an ongoing probe. "It's quite hard to find a proper purpose for that conversation," Whiting said.

This is important, because proving criminal intent is a prerequisite for advancing obstruction charges and it can be a difficult hurdle.

Also potentially critical is that the memo's alleged version of events connect to earlier reports and actions suggesting that the president was disturbed by Comey's investigations into Trump's associates and was willing to confront him over the issue.

The White House offered shifting explanations for Comey's removal, but Trump told NBC News' Lester Holt that his disdain for the FBI's ongoing investigation into his campaign's possible ties to Russia, which Comey confirmed in March, helped inform his thinking. Trump also called investigations into his campaign's ties to Russia "a taxpayer funded charade" on Twitter the day before firing Comey. At the same time, Trump has said he wants the investigations to continue.

Shortly after Comey's removal, sources close to Comey told news outlets, including NBC News, that Trump asked the FBI director to pledge his loyalty at a meeting in January. The next day, Trump tweeted what appeared to be a threat in which he warned that Comey "better hope that there are no 'tapes' of our conversations before he starts leaking to the press!" The White House has declined to confirm or deny whether Trump recorded their meetings, but has denied he asked Comey for his personal loyalty.

"When you put that all together with his statements and explanations and conduct, then common sense tells you that what he's trying to do is shut down this investigation," Whiting said.

Whiting was quick to add, however, that this interpretation rests on the reported allegations surrounding Trump proving to be accurate. We're still a long way from a full accounting of the relevant interactions between Trump, Comey and the FBI.

Robert Mueller
Getty Images

Okay, so how do we find out if the allegations are true?

There are a number of current and potentially future investigations that could help resolve the questions surrounding the president.

The FBI is looking into the Trump's campaign's potential ties to Russia. In theory, the agency could expand the scope of its investigation to include whether Trump himself violated the law.

Democratic leaders had long argued that the Justice Department should go further by naming a special counsel to reassure skeptics that the White House would not quietly interfere with the investigation. They got their wish on Wednesday with the appointment of Mueller, whose appointment earned plaudits from prominent Republicans and Democrats.

Mueller's work should take place behind the scenes. But Congress is also looking into Russian interference along with the latest news on Trump and Comey and it could produce more public information in the short term.

The Senate and House Intelligence Committees are both probing Russia's involvement in the 2016 election. On the Senate side, the top Republican and Democratic leaders on the committee sent letters on Wednesday asking Comey to testify and acting FBI director Andrew McCabe to turn over any memos related to Comey's conversations with the White House.

In a bipartisan letter, leaders of the Senate Judiciary Committee asked the White House on Wednesday to provide "all White House records memorializing interactions with Mr. Comey relating to the FBI's investigation of alleged ties between President Trump's associates and Russia, or the Clinton email investigation, including all audio recordings, transcripts, notes, summaries, or memoranda." That would presumably include the "tapes" Trump alluded to, if they exist.