Editor’s Note: Page Pate, a CNN legal analyst, is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and the former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.
Page Pate: At this moment there's neither the political will nor an independent process in place to impeach Trump
Unless Congressional Republicans step up, Trump's actions will have no real-world consequences, Pate says
This is like a law school exam that never ends. What law did the President break or not break today?
Last week, I was uncertain about whether or not President Trump obstructed justice when he fired former FBI Director James Comey just when the Russia investigation appeared to be heating up. I was still uncertain when it turned out that Trump fired Comey, at least in part, because he was tired of “the Russia thing.”
And I remained skeptical even when it was reported that Trump asked for a loyalty pledge from Comey while discussing the investigation into former national security adviser Michael Flynn.
But now we have a new allegation: There may be memos to corroborate that Trump asked Comey to terminate the Flynn investigation.
That’s enough for me. If the “Comey Memo” indeed exists, and says what has been reported, then there is probable cause that Trump committed the federal crime of obstruction of justice.
But so what? I don’t think it makes a bit of difference unless there is the political will and an independent process in place to do something about it. Right now, there isn’t.
There are different laws governing obstruction of justice, but the law that most closely fits this situation is the federal statute that makes it a crime for someone to attempt to “corruptly obstruct, influence, or impede” any “official proceeding.”
I don’t think there’s any real question that Trump was trying to influence Comey. The question is whether those attempts were “corrupt” and in connection with an “official proceeding.”
An “official proceeding” doesn’t have to be a case in court. Courts have been willing to stretch this law to cover not only judicial proceedings, but also any type of administrative hearing within a federal agency. While some courts have been reluctant to include “police investigations” as official proceedings, other courts have had no trouble finding that a federal criminal investigation can qualify.
If a court finds that an FBI investigation is an “official proceeding,” then the Flynn investigation would certainly qualify.
The other question is whether there was an intent to corruptly influence this investigation. Even if Trump just wanted to help out Flynn because he’s an old friend, this can be evidence of a corrupt intent. It would certainly be corrupt if Trump was leaning on Comey to stop the investigation because he knew he could end up being a potential target.
At the end of the day, “corrupt” means whatever a jury thinks it means. Given what we’ve heard about the private meeting between Trump and Comey, it’s not hard to imagine a jury finding an improper or corrupt purpose to these alleged comments about terminating the Flynn investigation.
It’s true that the President is different from other people. If the President wants to end a criminal investigation, there is no law to prevent him from doing it. And if there were such a law, it would be probably be unconstitutional as a violation of the separation of powers.
The difference here is that – again, if the Comey memo is as advertised – this President would have been trying to stop an investigation that focused on his administration. The President is a potential target of that investigation. If he were to try to exert exert influence on the direction of such an investigation, he could not do it without it being improper and, arguably, corrupt and illegal.
But even if he did break the law, remember: President Trump likely won’t be investigated by the Justice Department. They all work for him. There’s no independent special prosecutor (at least not yet) to take over this investigation and sort through all the different allegations. And even if there were a prosecutor hot on Trump’s tail, it’s not clear whether a sitting President can be indicted while in office.
That leaves Congress. Congress can impeach the President for “treason, bribery, or other high crimes and misdemeanors.” Is obstruction of justice a “high crime?” It is if Congress says it is. But before everyone starts using the “I” word, let’s all remember that the Republicans control Congress. And I’m sure the Republicans in Congress would prefer to avoid the heartburn of impeachment proceedings.
Get our free weekly newsletter
Unless Congressional Republicans decide to step up and deal with this, all the talk about whether President Trump obstructed justice will remain just like a question on a law school exam – a hypothetical with no real-world consequences.
But who knows what new law the President may (allegedly) break tomorrow?