Impeachment? Not so fast

Here’s a Q & A


WASHINGTON – President Donald Trump’s incendiary words and actions have placed him in potential legal jeopardy, with more lawmakers floating concepts like “obstruction of justice” and “impeachment.” Here’s a guide.

What’s ‘obstruction of justice’? A Congressional Research Service report indicates there are related laws against obstruction of judicial proceedings, witness tampering and obstruction of congressional or administrative proceedings, among other misbehavior.

A series of Donald Trump’s interviews, public statements, tweets, and personnel firings has Congressional Democrats publicly mentioning “impeachment” for the first time.

Violations of the “obstruction of congressional or administrative proceedings” statute can be punished by a fine and five years in prison. The witness-tampering statute carries a prison term of up to 10 years.

Could Trump be charged with these crimes? A 2000 Justice Department Office of Legal Counsel analysis concluded that “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” That leaves impeachment, which might be based on allegations of a crime like obstruction of justice.

What does the “obstruction of justice” law cover? The “obstruction of congressional or administrative proceedings” law targets “whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law (pending) before any department or agency of the United States.”

The witness-tampering statute covers, among others, anyone who “knowingly uses intimidation, threatens, or corruptly persuades another person with intent to influence, delay, or prevent” testimony in an official proceeding.

How might that apply to Trump? Investigators would examine Trump’s interactions with ousted FBI Director James Comey.

An investigator, for instance, might delve into Trump’s May 12 tweet that “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” It sounds vaguely threatening. On the other hand, the press leak Trump mentions is not the kind of “official proceeding” covered by the witness-tampering law.

The May 12 tweet, though, might also be considered damning context for the more recent allegation that Comey wrote a memo or notes following a Feb. 14 private meeting with the president. Comey recounted that Trump had urged him to end the FBI’s investigation of retired Army Lt. Gen. Michael Flynn, Trump’s first national security adviser.

“I hope you can let this go,” Trump told Comey, according to the memo first revealed by The New York Times.

Context matters when prosecutors try to prove the necessary intent. Trump was speaking to Comey in the Oval Office, the symbolic center of presidential power, and at a time when Comey’s job could be characterized as being on the line. Aides were reportedly asked to leave first, which a prosecutor might cast as vaguely suspicious, or even evidence of consciousness of guilt. Trump fired Comey on May 9.

Who would investigate?
The House of Representatives and Senate Intelligence committees have ongoing investigations into alleged Russian interference with the 2016 U.S. presidential election.  The biggest legal consequence might result from a witness’s false testimony.

A blue-ribbon special commission or a bipartisan special congressional committee to investigate alleged Russian interference would likewise be more about fact-gathering than about prosecuting.

On Wednesday, Rep. Eric Swalwell, D-Calif., launched a petition to force a House vote on a bill to establish a 12-member investigating commission. Such petitions face very long odds. They need a majority of House signatures, and Democrats control only 193 of the House’s 435 seats.

House Oversight Committee Chairman Jason Chaffetz has urged the Justice Department’s Office of Inspector General to broaden an ongoing probe to include “the facts and circumstances surrounding the removal of Director Comey.”

All this could further undermine Trump’s overall standing, with a drip-drip of revelations that leave him politically vulnerable.

The most direct threat to the president is the the Justice Department’s appointment of Special Counsel Robert Mueller, particularly if Mueller aggressively expands the scope of his work, as happened with former independent counsel Kenneth Starr and his years-long pursuit of President Bill Clinton, who was impeached.

Trump’s “impeachment” – in which charges would be filed against him by the House of Representatives – could follow, then conclude with a trial in the US Senate.


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