Thursday, we heard former FBI Director James Comey essentially clear President Trump of any obstruction of justice charges. When Senator Richard Burr (R-NC) asked James Comey on the record whether or not President Trump pressured him to drop the Russian investigation, Comey answered he did not.
During his testimony before a Senate committee, Comey cleared President Donald Trump of the “crimes” Democrats and the media have claimed he committed.
Comey said in his opening statement “throughout history, some presidents have decided that because ‘problems’ come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work.” Comey also acknowledged that the president had the constitutional authority to fire him for any or no cause. During his testimoney, several things have come to light.
This is what we have learned:
- According to James Comey’s own statements; there has never been obstruction of justice by President Trump. Specifically we can include what has been said by the President regarding Mike Flynn or the Russian probe.
- Contrary to reporting by media outlets; President Trump was never under investigation while James Comey was the Director of the FBI.
President Trump’s enemies have attempted to liken his current controversy to Watergate. In the Watergate scandal, accusations of Obstruction of Justice were confirmed by the actions of the President. Richard Nixon was accused (but never charged) with obstructing justice, because he committed the crime of instructing his aides to lie to the FBI. This is a violation of section 1001 of the federal criminal code. President Trump has not been accused of doing that.
It is against the background of this history and precedent that former FBI Director James Comey’s opening statement to the Senate Intelligence Committee must be considered, and corrected.
Charges of obstruction of justice during the Iran/Contra scandal
In 1992, President George H.W. Bush pardoned Caspar Weinberger and five others who had were indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, suggesting that he may have done it to prevent Weinberger from pointing the finger at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.
Walsh said “The Iran-Contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. “ Yet Bush was not charged with obstruction of justice. Nor have other presidents who interfered with ongoing investigations or prosecutions ever been charged with obstruction.
The truth of the matter is that throughout US history, from Presidents Adams to President Obama, all presidents have directed (not just requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.
It is only recently that the tradition of an independent Justice Department and FBI has emerged. Not only is there no basis for a criminal charge against President Trump, he had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn.
According to James Comey, President Trump did not order him to end the investigation. Trump could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.
Furthermore, let’s assume that Trump had said the following to Comey: “You are no longer authorized to investigate Flynn because I have decided to pardon him.” Would that exercise of the president’s constitutional power to pardon constitute a criminal obstruction of justice? No. Presidents do that all the time.
According to Comey, the president did not direct him to do that. In my mind, the subject is moot.