The Corner

Law & the Courts

A Quick Note About the Obstruction Analysis

I see that lots of folks are tweeting that James Comey refuted any claim of obstruction of justice because he testified that Trump didn’t order him to stop the FBI’s Russia investigation. This misunderstands the allegation. Those who intelligently argue that Trump committed obstruction of justice rest the claim in the totality of the circumstances, not in a (nonexistent) request to stop the Russia investigation or in Trump’s (actual) request to let the Flynn matter go. The strongest obstruction argument depends on evidence that Trump asked Comey to drop the Flynn investigation, fired him when he didn’t, and then lied to the American people about the reason. It’s a chain of events, not any one moment, that builds the case.

Comey’s written testimony seems to tell a slightly different story, one that chronicles an abuse of power but likely not obstruction of justice. Comey’s written testimony indicates that it’s likely that Trump fired Comey not because he refused to drop the Flynn matter but because Comey refused to publicly state that Trump wasn’t being personally investigated. This is a much tougher obstruction claim. No doubt the special counsel is exploring these distinctions right now, and we’ll learn more in the months to come. 

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