Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is of counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
A nation already weary of crisis news relating to President Trump was treated Tuesday to yet another bombshell.
The news wires hummed with a New York Times report that recently fired FBI Director James Comey has shown unnamed associates a memo implying that the President sought the termination of an investigation concerning his former national security adviser, Michael Flynn.
Comey reportedly authored a note shortly after meeting with the President to memorialize what he perceived as an odd conversation with the nation’s Chief Executive.
According to the Times, Comey took these notes following his conversation with Trump:
Allegedly, Trump said: “I hope you can see your way clear to letting this go, to letting Flynn go … He is a good guy. I hope you can let this go.” The President also reportedly stated that Flynn had done nothing wrong. Comey notes that his only reply to the President was: “I agree he is a good guy.”
The report follows a barrage of largely negative press after the President’s controversial decision to fire Comey and then, the very next day, allegedly reveal classified information to the Russian ambassador and foreign minister on their visit to the Oval Office.
The strange behavior regarding Comey, Flynn and the Russians is causing a substantial spike in impeachment speculation that had begun as a murmur after the President’s controversial sacking of Comey.
The real question now being asked by lawyers, Congressmen and the electorate is whether the words and actions of the President regarding the Flynn investigation add up to the crime of “Obstruction of Justice,” a rather vague concept under US law.
If it does, Trump could be charged by the Republican-controlled House of Representatives with an impeachable “high crime or misdemeanor,” warranting a trial before the Senate, and if convicted, removal from office. The President is immune from criminal prosecution while in office but could face criminal charges once he resigns or is forced from office via impeachment proceedings.
While Trump’s opponents will stridently demand impeachment, that road, though possible, is strewn with substantial impediments. The first and most significant is the need for a majority vote in favor of impeachment in a Republican-majority Congress.
In 1974, a Republican congressional committee did vote to impeach Republican President Richard Nixon, forcing him to resign in disgrace, but the charges against Nixon were far more substantial than the single potential count of “Obstruction of Justice” being discussed at the moment.
In Nixon’s case, the House Judiciary Committee voted in favor of Articles of Impeachment alleging Obstruction of Justice, Abuse of Power and Contempt of Congress.
The charges asserted that among other nefarious acts, Nixon had made false statements, withheld evidence, suborned perjury, authorized through subordinates the Watergate burglary, obstructed lawful investigations by the FBI and Department of Justice, bribed witnesses with campaign funds, misused and interfered with the CIA, illegally punished his enemies by using the IRS, the Secret Service and other governmental agencies, and engaged in a general cover-up scheme.
This is only a partial list from the Nixon charges, and the worst of it was corroborated by Nixon’s own words, which he taped himself. Even with substantial evidence supporting all the charges, the Judiciary Committee was far from unanimous in referring the articles of impeachment. Rather than face a full vote in the House of Representatives, Nixon resigned.
By comparison, President Trump appears to be a veritable Boy Scout. His aides are already denying that Comey has accurately recounted his conversation with the President. They emphatically state that the President never ordered or directed the termination of any criminal investigation. If the matter ever proceeded to a real fight, Trump lawyers would claim that a vague discussion urging mercy for a “good man” was merely a suggestion and not an order.
Even Comey agreed that Flynn was a “good guy.” It appears that Comey never even suggested to the President that there was anything improper about his request. Unlike the Watergate burglars who really were investigated and arrested, no criminal charges have ever been lodged against Flynn, so what “judicial proceeding” is being obstructed?
The big problem at this stage is that in the absence of tapes, it will be the word of the President against his disgruntled former FBI director. And even if Comey’s words are accepted as true, it still may not add up to a legal case of “Obstruction of Justice.” Trump lawyers and advocates will urge the public to ask: Why didn’t Comey complain to Congress or the Department of Justice if he felt the President had urged the commission of a criminal act? Why didn’t Comey resign and blow the whistle on the President?
Instead, Trump supporters will say Comey is really seeking revenge in anger over the loss of his prestigious job. They will rally, asserting that this is yet another conspiracy by the coastal media elites against their fearless leader who is merely trying to “drain the swamp,” as he promised.
In the end, “Teflon Don” will survive this attack. The wagons of opposition, however, are circling. The President is demonstrating a pattern of incompetence, dishonesty and arrogant irresponsibility in his handling of classified material and foreign affairs that may well lead to impeachment in the future.
The evidence supporting impeachment must be powerful and compelling to attract the votes of the President’s own party. Many in the party may not like Trump, but they will never impeach on evidence this thin and flimsy.