Do the contents of James Comey’s memo that President Trump tried to get him to end the investigation of then-national security adviser Michael Flynn spell legal trouble for the president or just a massive political problem? Comey’s memo would be a windfall for any prosecutor intent on building a case that Trump violated federal criminal law, but there’s no reason for Trump supporters to panic or for others to hold their breath, law Prof. Ryan Goodman of New York University writes for Politico. No federal prosecutor may ever take up such a case—no matter how strong it is, and the true locus of power for what will happen to Trump rests with political decisions made in the halls of Congress.
If there is legal trouble ahead for Trump, Goodman writes, it’s because the facts in this case look and smell a lot like the federal offense of obstruction of justice. The question prosecutors would need to answer, technically speaking, is whether the president “corruptly endeavored to influence, obstruct, or impede” the FBI investigation. What exactly does it mean to have “corruptly” attempted to influence or otherwise subvert such a federal process, and how would the memo help prove it? All the president said is that he had “hope” that the FBI would drop the Flynn investigation. The strongest case is that president’s actions involved obstruction of justice by trying to pressure the FBI director to drop the investigation. As current and former federal prosecutors will say, “intent is key” and is often the most difficult element to prove in an obstruction of justice case—but here Trump’s remarks would surely go a long way to establishing intent. Still, a Justice Department legal opinion issued in 1973 and reaffirmed in 2000 says the president is immune from prosecution before a federal criminal court, and only one avenue exists to pursue a case against him: impeachment.