While there is still some controversy about it among constitutional lawyers and experts, it’s generally conceded that the president of the United States cannot be criminally prosecuted while he’s still serving in the office. As we discovered during the Clinton presidency, they can be pursued in civil court, but that’s controversial, too. It’s just not true that the president is equal to other citizens before the law. And I don’t think they should be. I don’t think most Americans think they should be. The responsibilities of the office are too great for them to be distracted with court proceedings which might be politically motivated and frivolous. We have other remedies for dealing with a president who commits a criminal act, and while those remedies are politicized and imperfect, they are a reasonable compromise.
I don’t want to overstate the case here, though. Certainly, the principle that no man is above the law is an important one, which is why, for example, I don’t think a president should be allowed to pardon himself. A criminal president must be subject to justice once they are once again a private citizen. The reasons for exempting them while in office are entirely practical and should not provide any principle of immunity.
I bring this up to explain why one aspect of Comey’s testimony doesn’t bother me too much. If my name was being splashed across the national news in relation to a FBI counterintelligence investigation, I’d consider that a major problem for my reputation and employability. And if I were somehow so lucky as to get private assurances from the FBI director that I was not in fact the subject of that investigation, I’d surely ask him to clear my name. I think anybody would do the same. I might even say that I wanted him to “remove the cloud” that was following me around wherever I went.
Of course, as a private citizen, this wouldn’t be obstruction of justice since the FBI director doesn’t serve at my pleasure and wouldn’t be threatened or coerced in any way by my request. He could choose to clear me without thereby creating a duty to correct the record if I later did become a subject of the investigation. In this way, I actually have greater freedom of action than the president. When he finds himself in the same situation, he can’t make the request I made without possibly violating the law. And it’s easy to see why this would be immensely frustrating. He thinks his name can be cleared but it isn’t getting cleared. Instead, innuendo builds and causes him reputational and political problems that even reach so far as to limit his range of actions in the foreign policy theater.
In this limited sense, I don’t think the president should be held to account for obstructing justice at least if the way he is held to account is to be impeached, convicted and removed from office. Note that I didn’t say that he was innocent. I only said that he shouldn’t be held to account for it. Whatever other article of impeachment might be justifiably drafted, I don’t believe that this should be one of them. Maybe call it a low crime, akin to lying in a deposition about an extramarital affair.
Unfortunately, for the president, I cannot say the same thing at all about his efforts to stifle the overall Russian investigation and in particular to kill the investigation of Michael Flynn. Before I explain that fully, though, I want to make one last point about Trump’s supposed vindication about not being the subject of a counterintelligence investigation.
I am going to quote from a Benjamin Wittes article at Lawfare in which he explains the Comey’s prepared testimony really isn’t exculpatory for the president on this point.
Ironically, the document makes perfectly clear that Trump was aware that the investigation was touching people close to him in the campaign and his company, and that he was perfectly willing throw these people under bus if need be: “The President went on to say that if there were some ‘satellite’ associates of his who did something wrong, it would be good to find that out, but that he hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.”
Put simply, this emphatically does not amount to Trump’s blanket statement that he was assured multiple times that he was not under investigation. Trump might have been on solid ground in his letter firing Comey had he written that “I greatly appreciate you informing me, on three separate occasions, that none of the investigations involving my campaign, my subordinates, or my companies at the present time involves an open counterintelligence case directed at me personally.” Somehow, however, that lacks the self-exculpating ring the President seems to have been going for.
Comey was assuring the president of something narrow and technical, which is that no file in his name had been opened. That did not mean that he wasn’t implicated or vulnerable, because his campaign was the central organization under investigation. To give an obvious example, if Michael Flynn were caught in some illegal scheme to coordinate with the Russians, the next question would be if Trump was a witting part or perhaps even the director of the conspiracy. Trump placed too much importance on the assurances Comey provided him and the “cloud” he wanted removed couldn’t honestly be removed. Perhaps Comey should have done a better job of making this clear to Trump, but it’s also possible that Trump only took the parts he wanted to hear and discarded the rest.
Where Trump clearly crossed the line and committed an impeachable offense was in trying to protect Flynn, a possible co-conspirator and a suspected agent of the Russian government, from scrutiny in a counterintelligence investigation and for lying to the FBI. Both examples here are obstructions of justice, but only one of them is worthy of a mulligan. We can forgive Trump for wanting his named cleared in the narrow sense in which it could be cleared, and for crossing a line in pursuit of that goal. But we cannot forgive him for trying to stop an investigation into the possible Russian penetration and compromise of his National Security Advisor, especially because that investigation has the potential to reveal that Trump was a participant.
In his efforts to quash the investigation, Trump crossed many lines, including his one-on-one dealings with Comey, his efforts to use the NSA chief and the director of National Intelligence to influence Comey, and his decision to fire Comey.
Ordinary citizens don’t have the power to shut down an investigation that may eventually implicate them in a crime, so it isn’t even possible for an ordinary citizen to commit this grave of an obstruction. That the president discovered that he ultimately doesn’t have that much power either is not a defense. He clearly attempted it and admitted as much to Lester Holt of NBC News and to the Russians, as recorded by a White House stenographer.
So, in one case we have a technical obstruction of justice that can be overlooked and in another case we have the most serious case of obstruction that’s really imaginable, which is not an effort not to impede or mislead an investigation but to stop it entirely.
Trump is arguing that Comey’s testimony vindicates him because it shows he wasn’t under suspicion, but it doesn’t show that at all. And, more importantly, Comey’s testimony proves (if you believe it) that Trump committed an offense so serious that it cannot be overlooked. Letting Clinton get away with his dalliance with Monica Lewinsky did no discernible damage to the rule of law, but letting Trump get away with this would set a precedent that future president can commit crimes and then protect themselves by destroying any investigations of those crimes.
It’s important that he not be allowed to get away with this.