While Democrats are discussing impeachment, legal experts are dubious that President Donald Trump’s reported conversation with fired FBI director James Comey about the case of former National Security Advisor Michael Flynn would be an easy obstruction of justice case.
“No politician in history, and I say this with great surety, has been treated worse or more unfairly,” @POTUS says.
“I don’t personally think any prosecutor would bring that case,” Ron Hosko, a former assistant FBI director for the criminal investigative division, told The Daily Signal, referring to the report that Trump suggested ousted FBI Director James Comey back off the investigation of former National Security Adviser Michael Flynn. “Any defense attorney could argue the president was wishing out loud. There was no killing a witness, no destruction of evidence.”
The New York Times first reported Tuesday on a Comey memo of a February conversation, in which the FBI director purportedly wrote that Trump told him: “I hope you can let this go … [Flynn] is a good guy. I hope you can let this go.” Flynn was ousted after misleading Vice President Mike Pence regarding his contact with Russian officials.
There is a “big however,” Hosko added. That’s if the firing can be connected to an effort to stop an investigation.
“The president can fire an FBI director for any reason or no reason,” said Hosko, now the president of the Law Enforcement Legal Defense Fund. “But, if evidence emerges that he fired Comey over the Flynn investigation or over the Russia investigation, now it becomes harder to defend.”
The Justice Department named former FBI Director Robert Mueller Wednesday as a special counsel to investigate Russian interference into 2016 presidential election. The FBI is also investigating Flynn’s contacts with Russia.
Several House Democrats are using the report to demand impeachment—a highly unlikely scenario given Republican majorities in the House and Senate. On Wednesday, Rep. Al Green, D-Texas, delivered a floor speech about impeachment, though he didn’t sound convinced the president was guilty, noting that it is the Senate’s job to make that determination.
“Impeachment does not mean the president will be found guilty,” Green said. “It simply means the House of Representatives will bring charges against the president.”
Democratic leadership in the House and Senate have not taken up the cause of impeachment.
Even if there was a House majority to pass articles of impeachment against Trump, two-thirds of the Senate would have to agree on his removal from office. This would be a politically steep hill to climb according to a presidential historian.
Only two presidents have been impeached in the House, and both survived a Senate trial to serve out their term. The cases were very different, but offer context on an effort against Trump, said historian Larry Schweikart, a retired history professor at the University of Dayton, and author most recently of the “Politically Incorrect Guide to the Presidents” and co-author of “How Trump Won: The Inside Story of a Revolution.”
“Andrew Johnson, for example, was impeached because he was as unpopular in Washington as Trump is—but Johnson deliberately and blatantly went out of his way to violate a law so as to provoke impeachment as a test case,” Schweikart told The Daily Signal in an email response. “Johnson, [Abraham] Lincoln’s veep, was a Democrat in a Republican administration that hated him.”
Schweikart added the economy shows signs of improving, which means that even if Democrats gained a congressional majority, impeachment would be politically difficult.
“The GOP actually opposed Clinton, while his own party supported him rabidly. But a similarity with Trump [is] the economy was booming,” Schweikart said. “Trump’s economy isn’t quite there yet, but it’s very, very hard to even undertake impeachment against a president who has a booming economy. Watergate did not turn [public opinion] against Nixon until the economy turned sour. Had Nixon had Clinton’s economy, he likely would have survived.”
Schweikart said he believes there could be 20 House Republicans, whom he said are “committed to the swamp” that might be inclined to join Democrats, but he doubts they would take the political risk.
Rep. Justin Amash, R-Mich., in response to a question from a reporter, said trying to stop an investigation would be an impeachable offense, The Hill reported. But, he said, “everybody gets a fair trial.”
The key charge against Johnson, who ascended to the presidency after Lincoln’s assassination, was for the controversial firing of a high ranking federal official. Johnson fired War Secretary Edwin Stanton, which at the time was considered a violation of the Tenure of Office Act. The statute, which has since been invalidated by the Supreme Court, disallowed the firing of high-ranking government officials without Senate approval.
One of the two articles of impeachment against Clinton was obstruction of justice.
Matthew Whitaker, a former U.S. attorney for the Southern District of Iowa, has prosecuted obstruction of justice cases, but generally in the context of a drug dealer trying to make a witness change his story, rather than a president. Obstruction has a specific definition from U.S. Code, according to Whitaker.
“Obstruction is a very technical crime with important elements to prove,” Whitaker, now executive director of the Foundation for Accountability and Civic Trust, told The Daily Signal. “We don’t know enough, based on what we’ve seen of the memo.”
In remarks to Coast Guard Academy graduates in New London, Connecticut Wednesday, Trump didn’t directly talk about the obstruction allegation, but he took shots at his political opponents and the media.
“Look at the way I’ve been treated lately, especially by the media. No politician in history, and I say this with great surety, has been treated worse or more unfairly. You can’t let them get you down,” Trump said, getting applause. “You can’t let the critics and the naysayers get in the way of your dreams. … I guess that’s why we won.”
David McIntosh, a lawyer and former House member from Indiana, argued during his remarks at a Federalist Society conference Wednesday that Trump had both the authority to talk to Comey about an investigation and to fire him. McIntosh said:
President Trump acted appropriately if he gave guidance to Director Comey on an investigation. It is important for us to step back and remember that, under the Constitution, the president has the authority and power to enforce the laws. There’s nothing in the Constitution about an FBI director. The FBI director reports to the president and it is the president’s decision to delegate authority on investigations. In delegating that authority, presidents have wisely chosen to insulate the FBI from political interference. But the president still has the power and authority to direct the FBI how to do their job. Congress, in its critiques of the executive branch, should not overstep and try to direct or limit the president’s legitimate exercise of his Article 2 powers.
House Oversight and Government Reform Chairman Jason Chaffetz, R-Utah, requested the FBI provide a physical copy of Comey’s memo to congressional investigators.
Democrats likely know this is not a viable obstruction case, said Jordan Sekulow, the executive director of the American Center for Law and Justice. He said if the Times story is entirely true, “In the words of James Comey, no prosecutor would bring this case.”
“Obstruction of justice is a loaded term,” Sekulow said. “It’s political to create an impeachment scenario. The bar is lower, but we have a Republican Congress. This is just political warfare. It was enough to get the Washington media talking about it. … During the Obama years, when people would talk about impeachment, we’d always discourage that talk as no way to get things done.”
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Read more here: http://dailysignal.com/2017/05/17/trump-impeachment-proceedings-obstruction-charge-unlikely-go-far-analysts-say/ by Fred Lucas Originally posted on http://dailysignal.com/