As just about everyone knows, ex-FBI Director James Comey has raised the issue of whether Trump attempted to obstruct justice in interfering with official investigations of the Russian entanglements of Michael Flynn, Trump’s former National Security advisor. Obstruction of justice is a serious felony, an impeachable offense and one that might lead to indictment. Trump fired Comey on May 8, 2017, after relations deteriorated when the FBI refused to end its probe into Flynn and the Russian connections.

It’s too early to say what, if anything Congress will do, or to guess about what might happen in court in it came to that. But we can consider what would have to be shown to maintain an obstruction charge.

Fasten your seatbelts. This is going to get rocky. Blame the courts, not me.


On Feb. 14, 2017, President Trump met in the Oval Office with James Comey, then FBI Director, about the FBI’s criminal investigation of Michael Flynn, the National Security Advisor, who had resigned the day before over questions about his contacts with Russian officials. What happened at the meeting is disputed.

On June 8, Comey testified before the Senate Intelligence Committee. He saiid under oath that at the February meeting Trump cleared the room, asking Attorney General Sessions and his own advisor and son-in-law Jared Kushner to leave, and told Comey, “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.” Comey testified, “I took it as a direction” that “this is what he wants me to do…. [I] replied only that ‘[Flynn] is a good guy.'” Comey said he did not say he would get the matter go.

About two weeks before that, Comey testified that he and Trump had dinner alone. At the dinner, Comey said, Trump told him, “I need loyalty, I expect loyalty.” Trump, Comey said, asked him whether he liked his job and wanted to keep it. Pressed by Trump, Comey to Trump he would get “honesty.” Trump said, “That’s what I want, honest loyalty.”

Comey testified that Trump had told him the Russia investigation was “‘a cloud’ impairing his ability to act on behalf of the country”. He asked Comey to “lift the cloud.” Comey also testified that Trump urged him to “get that fact out” that Trump himself was not being investigated.” Comey explained that he had been reluctant to do that “because it would create a duty to correct, should that change.”

Coney kept detailed contemporaneous memoranda of his conversations with Trump, he said, to make sure he got the details right. Comey gave these to Professor Daniel Richman of Columbia Law School and asked him to make them public in order to hasten the appointment of a Special Counsel. Richman gave them to the New York Times. Bus, Insider 6.8.17. Trump denounced these statements as “leaks,” “illegal” and “lies.” (They do not appear to be illegal.)

After he fired Comey, Trump told Russian officials in the Oval Office the dismissal “had relieved “great pressure” on him,” according to a document summarizing the meeting. “I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said in the document, read to The New York Times by a US official. “I faced great pressure because of Russia. That’s taken off.” Wash. Post 5.19.17. Although he initially stated that Comey had been fired not because of the Russia investigation but because of his handling of the Hillary Clinton emails affair, a day later, Trump told NBC News, “When I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story.” NBC News, Interview with Lester Holt, 5.11.17.

After the firing, Trump tweeted that “Comey had better hope there at no tapes” of the meeting. LA Times, 5.12.17. “Lordy,” said Comey said before the Senate, he hoped there were. None have emerged. After Comey’s Senate Committee testimony, Trump called Comey a liar, in effect, a perjurer — also a serious crime. Comey returned the favor, although of course Trump has not yet made any statement under oath.

On May 17, 2017, the Justice Department appointed former FBI Director Robert Mueller as Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation,” after Attorney General Jeff Sessions properly recused himself from investigating his boss.

This incident has raised the issue of possible charge of obstruction of justice, “There is a criminal investigation going on of one of the President’s top associations . . . he gets fired, he is under investigation and the President brings in the FBI Director and says ‘please stop your investigation,'” said Jeffrey Toobin, CNN senior legal analyst, has said “If that isn’t obstruction of justice, I don’t know what is.” Let’s look at that for sec.


The primary federal obstruction statue is 18 U.S.C.§ 1503, but that only covers obstruction of judicial proceedings. The applicable statute here is § 1505, which prohibits anyone, including the President, from “corruptly” influencing, obstructing or impeding, a pending proceeding before a federal agency or an inquiry or investigation by Congress, or endeavoring to do so.”

To break this down: (1) there must be “proceedings” pending before a federal agency or an investigation by Congress, (2) of which the person accused of obstruction is aware, and (3) he must have and “corruptly” attempted to influence, obstruct or impede the proceedings or investigation.


Here what matters is the investigation into the Russia affair by the Senate Intelligence Committee, started Jan. 10, 2017, and possibly the House Intelligence Committee inquiry, begun Jan. 25., although the Chairman of the House Committee said on Feb. 14 that it would not be investigating Flynn. While Trump almost certainly knew about these Congressional investigations, he did not know on the Feb. 14th that the House would not be looking into Flynn.

The FBI investigation is not a “proceeding” because the FBI has no rule-making or adjudicative power. US v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994). An investigation, the D.C. Circuit Court of Appeals held, “must be more than a “mere police investigation,” and that would include an FBI investigation. The D.C.; Circuit has jurisdiction over D.C., where these events supposedly occurred. Toobin, therefore, is wrong. If all Trump had tried to do was to influence or impede the FBI investigation, he would OK by § 1505, though perhaps in violation of other law and certainly sleazy.

But there was also the Senate Intelligence Committee investigation and, as far as Trump know, the House one. So, there was an investigation of the right sort that Trump is virtually certain to have known about.


The question is whether Trump “corruptly” attempted to influence, obstruct or impede the Congressional investigation. “Corruptly” is a slippery word in the law. It implies an evil or improper motive. Normally motives don’t matter in criminal law. See Wayne LaFave, Criminal Law § 5.3 (5thth ed, 2010). But here they do. The leading Supreme Court case is US v. Aguilar, 515 US 595 (1995) (regarding § 1503). There must be specific intent to obstruct justice, not just intent to do the things that produce the forbidden obstruction or impediment. In the judicial context, § 1503, specific intent may be just intent to do things that “naturally and probably” have that effect.

The requirements are heightened in the context of Congressional investigation, which involves a political branch of government, Here, more than in the judicial branch, there may all sorts of non-evil, non-corrupt intentions to do things that impede or obstruct the investigation. US v. N., 910 F.2d 843  (D.C. Cir.1990). Thus, a powerful Trump supporter might call a Senator on the Committee and urge the investigation be stopped because it’s obviously just designed to embarrass the President.

The D.C. Circuit says this sort of thing is just politics, not obstruction with corrupt intent, even though the specific intent is to do something that will foreseeable impede the investigation. The corrupt specific intent necessary for corruption signifies acting with bad purpose to do, or try to do, something prohibited. (Id.). That doesn’t mean you know it’s prohibited, just that you have bad intent. You also don’t have to succeed: you obstruct just by “endeavoring” to do so with specific intent by means that you know would have the natural and probable consequence of bringing about that effect, even if you fail.


If this this seems a bit like trying to nail down to nail down a blob of mercury, that’s because it is. See J. O’Sullivan, The Federal Criminal “Code:” Is A Disgrace, 96 J. Crim. L. & Criminology 698 (2006). In case you were wondering, the obstruction and other statutes involving “corrupt” intent have survived constitutional challenges. See US v. Cueto, 151 F.3d 620 (7th Cir. 1998) (holding that “corruptly” is not unconstitutionally vague as applied); accord US v. Brenson, 104 F.3d 1267, 1280-81 (11th Cir. 1997). For a survey of obstruction law, see also J. F. Decker, The Varying Parameters of Obstruction of Justice in American Criminal Law, 65 La. L. Rev. 49 (2004). (Both  articles available on line.) What’s relevant here is that loosey-goosey as federal criminal law may be, obstruction, especially in the context of § 1505, congressional investigations, may be easier to charge than to prove.


Former assistant Watergate special prosecutor Philip Allen Lacovara is more confident. He writes in the Wash. Post, 6.7.17: “Comey’s statement lays out a case against the president that consists of a tidy pattern, beginning with the demand for loyalty, the threat to terminate Comey’s job, the repeated requests to turn off the investigation into Flynn and the final infliction of career punishment for failing to succumb to the president’s requests, all followed by the president’s own concession about his motive. Any experienced prosecutor would see these facts as establishing a prima facie case of obstruction of justice.”

Probable cause is a low standard, “reasonable grounds to believe” that the suspect has committed a crime. Draper v. US, 358 US 307 (1959). In ordinary cases against ordinary suspects, it’s practically a rubber stamp. But this is the President of the United States. And any finding of probable cause will be held to much heightened standard.

Here questions will arise, and Trump’s very able lawyers will raise them if the occasion demands. Was Comey correct to take Trump’s “hope” as an instruction? Was the demand for “loyalty” and the inquiry about whether Comey liked his job a threat connected with some sort of direction to abandon the investigation? Was there specific intent to obstruct a Congressional investigation (illegal under § 1505) or just the FBI investigation – not obstruction at all, if rather smelly? There are many other unresolved issues.

This point is different from one raised by Alan Dershowitz of Harvard Law School. He says: “The president has the authority to direct the head of the FBI to stop investigating anyone.” Fox News, 6.28.17. He has that power as Chief Executive and FBI Director’s boss. But such an order, if that’s what it was, might be still obstruction if its specific intent was corruptly to impede a Congressional investigation. In that case, he couldn’t legally use that power. It would be politically foolish to appeal to that power even if it wasn’t a crime. The President also has the pardon power and could pardon himself for any crimes he may have committed so far. It would be politically fatal to use that power. Of course Trump is nothing if not foolish.
“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct,” Comey testified to the Senate Committee. “I took it as a very disturbing thing, very concerning, but that’s a conclusion I’m sure the Special Counsel will work towards to find out the intention and whether that’s an offense.”


I’ve barely mentioned the “I” word, impeachment. The consequences of conviction by the Senate are removal from office. The constitutional standards for impeachment, are “treason, bribery, and other high crimes and misdemeanors.” Treason and bribery are clear but not at issue here. No one really knows what “high crimes and misdemeanors” are. The Articles of Impeachment prepared against Richard Nixon and Bill Clinton included obstruction of justice. But this would be a finding made by the Senate, not a court of law.

My own reading of law, history, and the experience of having lived through two attempts at impeachment is that an impeachable offense is whatever Congress thinks it is.

In this case, we have a Republican President and a Republican majority in both Houses. I do not think they will impeach or convict unless their wise men have decided that Trump, an unpopular President who is (I editorialize, but I don’t think this is controversial) totally unqualified and completely unfit for office, has become too much of a liability for them. Whether and when that might happen I would not venture to guess.


Whether opponents of Trump and the Republicans should wish for impeachment is another question. Vice President Pence will replace him unless he is somehow implicated in the web of scandal. Pence is, by all accounts, a smart, able, experienced, deeply reactionary theocrat. He will not carry Trump’s populist appeal. He would be hobbled by a Trump impeachment to some degree. He might be more effective than Trump with blunders at pursuing their common agenda. And should Pence be excluded for some reason, the next in the line of succession is Paul Ryan, Speaker of the House, just as right wing as Pence and no less capable.

These are not prospects liberal or left Trump opponents can view with much equanimity. Bear in mind the old Yiddish curse: “May you get what you wish for.”  I think their – our – solution to the Trump problem lies in political action, no less against Pence or Ryan if either replaces Trump,  and not in the procedures of a Republican-controlled Congress or the hands of the FBI and its past Directors.

Cruelty, Race, and the Death Penalty

It’s not as if capital punishment wasn’t bad enough, but the State of Arkansas is about to go on a killing spree with expiring death drugs the “ordinary” use of which amounts to torture. (As this page remains up the executions will almost certainly have been carried out.)

If we are going to insist on judicially authorized killing with a shred of humanity, if that’s not a contraDeath Chamber Gurneydiction in terms, we’d use the guillotine, which is certain, swift, and (because it instantly severs the spinal cord at the neck) medically provably painless. But decapitation grosses us out, so we’d rather impose excruciating deaths that often take long period with unknown drugs of uncertain provenance. If we couldn’t deal with decapitation, we might execute the condemned with overdoses of medical-grade morphine, which is also certain and certainly painless.

But the real problem is the death penalty itself, which is not only barbaric, but freakish (Furman v. Georgia, 408 U.S. 238 (1972)) (Stewart, J. concurring), as well as racist. It’s no accident that over 80% of the executions since the Supreme Court allowed the reinstitution of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976) were in the states of the Old Confederacy.  Not that the old South is more racist than, say, Chicago, but the pattern re-creates the historical localization of lynchings.

In view of the immediate occasion of this post being executions in Arkansas, it is telling that of the almost 4,000 documented lynchings,  one Arkansas County, Phillips County, in the Mississippi Delta, accounted for over 6% of all lynching, 243 in all. More than eight in ten American lynchings between 1889 and 1918 occurred in the South.  African Americans make up 13% of the US population, but 42% of the roughly 3,000 people now on death row are black, and 35 percent of those executed since 1976 have been black (figures from the Equal Justice Initiative, http://eji.org/death-penalty; https://www.democracynow.org/2015/2/11/as_study_finds_4_000_lynchings ).

Just to drive the point home, over 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims generally are white. (http://www.deathpenaltyinfo.org/documents/FactSheet.pdf ) In McCleskey v. Kemp, 481 U.S. 279 (1987), the court considered a study by David Baldus of the Univ. of Iowa showing that black killers of white victims were more than four times as likely to receive the death penalty than killers and victims in any other combination. The Court stated that the “racially disproportionate impact” in the Georgia death penalty was not enough to vacate the death sentence without showing a “racially discriminatory purpose” in the particular case. Statistics weren’t enough to raise a constitutional doubt. But they should raise a doubt in our own minds and that of our legislators.
There may be people who deserve to die, although it might be debated who these are. Some people might nominate corrupt politicians, high-ranking war criminals (there is precedent for this at Nuremberg), and crooked financiers of the sort who crashed and burned the world economy in 2000 and 2008, many members of any one of which groups caused far more atrocious suffering than any individual murderer.

But even if someone deserves to die for whatever reason, the question remains open, do we have the moral right to kill them? In view of the cruel, random and racially biased nature of the way the states impose capital punishment, it seems clear that we are not civilized enough to have a death penalty. And if we were, we probably wouldn’t.


Weaponizing the First Amendment

South Dakota has just passed a law allowingcoexist discrimination against LGBQT (gays, for short) on religious grounds, despite a series of U.S. Supreme Court decisions to the contrary, most recently Obergefell v. Hodges (https://supreme.justia.com/cases/federal/us/576/14-556/ ) (legalizing gay marriage).


Expect a lot more of this: purported attempts to “protect religious freedom,” supposedly under attack (but not for Muslims, ahem) that are pretexts for legalization of discrimination. There is proposed Executive Order at this writing circulating in the White House that would essentially repeal all discrimination laws for persons, which includes, you will recall, corporations, who think their God told them to treat gays, women, Muslims, black people, commies or liberals or Jews (same difference), etc. differently and worse than conservative white Christian males of European descent, aka “real Americans.” https://www.thenation.com/…/leaked-draft-of-trumps-religio…/

These laws are unlikely to pass constitutional muster at present, not with the current line-up on the U.S. Supreme Court (SCOTUS) or even when Judge Gorsuch is confirmed. When Trump gets to pick the next justice after him, it’s wide open what will happen. But in the meantime these efforts will absorb a lot of time, effort, energy, and money being litigated.


For roughly the last 20 years SCOTUS has been using the First Amendment, twisting it of twisting out of all recognizable shape,  treating it as a battering ram to force through a right-wing activist agenda, roughly in the same way that SCOTUS used the Due Process clause of the 14th Amendment to promote laissez-faire economics in the period from roughly 1890 to 1936.

Constitutional scholars call the “Lochner Era,” after one such case, Lochner v. New York, 198 US 45 (1905) (striking down limitation on working hours as unconstitutional) otherwise unremarkable except for a scathing and brilliant dissent by Justice Holmes –who agreed with laissez-faire economics, but did think it was the business of the courts to write it into the U.S. Constitution.


This era ended during the Great Depression when SCOTUS, after striking down several New Deal programs on the grounds, became aware that there was a national emergency and the perceived legitimacy of the courts as obstacles to doing something about it might backfire on the courts themselves. It’s a longer story than that, but you can read about it if you like. Google “Lochner Era” and “the Switch in Time.” From the mid 1930s to the mid 1990s, more or less, the courts pretty much let Congress do whatever it wanted with social and economic legislation because, it held, Congress had power under the Constitution to regulate Commerce, and everythingf affected commerce. But when it came to legislation involving restrictions on individual rights, or oppressive to racial or national minorities, the Courts got very particular.


In 1997 SCOTUS handed down City of Boerne v. Flores, 521 U.S. 507 (1997), a seriously arcane decision, very technical, about the Religious Freedom Restoration Act introduced by Rep. Charles Schumer and Sen. Teddy Kennedy in 1993. The Court struck down part of the Act on the grounds that Congress had exceeded its constitutional powers to legislate, and in so doing, gravely restricted and imposed onerous conditions upon those powers. The masochistic or super-nerdy can read my piece on the case and its subsequent history, https://works.bepress.com/justin_schwartz/2/ , but warning: it’s really technical. Well written, though.


In more familiar and accessible news, SCOTUS has used the First Amendment to strike down limits of corporate campaign contributions in Citizens United v. Federal Election Commission 558 U.S. 310 (2010) (nonprofit corporations), subsequently extended to for-profit corporations and other groups, building on an older ruling, Buckley v. Valeo, 424 US 1 (1976) (holding that money is speech). I’ve written a short accessible nontechnical article, half of which is about this. https://works.bepress.com/justin_schwartz/9/ When money speaks

Corporations are persons under the 14th Amendment and therefore protected by the First Amendment, and have been for over 130 years, since Santa Clara County v. Southern Pacific Railroad Company, 118 US 394 (1886). This is a principle many people wrongly think to have been established by Citizens United. It’s much older. That’s how the Lochner Court was able to apply, or misapply, the Due Process clause to corporations over a century ago.


What this Court has been doing in the name of Freedom of Speech and Free Exercise of Religion is to extend these principles to promote a far-right agenda, attacking antidiscrimination laws and enabling multinational corporations to drown out the voices of the people by deluges of money on the pretense that their billions is just like your $25, limiting Congress’ power to legislate against things the right-wing majority of the Court doesn’t like.


If that doesn’t sound like what the Courts should be doing, it’s because it’s not. Justice Holmes had it right. He personally agreed with the policy outcomes of the Lochner Court. In his policy ideas, he was a laissez-faire conservative or what we call today a libertarian. But he thought that the judge’s job was to interpret the law. It was not make it up and impose his own policy preferences on the country. He thought it was especially not the judge’s job to do this by interpreting the Constitution in a way that requires an almost-impossible-to-get constitutional amendment or a different Court that might take many decades to come about and undo the damage.

I’m not conservative when it comes to policy, you may have noticed, but I am when it comes to what I think judges should do. If they want to make policy, they should get themselves elected to the legislature or run for executive office. When they put on the black robes, take the oath, and sit down behind the bench, what they’re supposed to do is what the law requires, no less, no more, in as minimal a way as possible, and whether or not they like the outcome. Judge Gorsuch says, “I decide cases.” If only.


It took almost 50 years to reverse the errors of the Lochner court, 58 to undo the Jim Crow segregation upheld in Plessy v. Ferguson, 163 US 537 (1896) (holding that the Equal Protection Clause of the 14th Amendment was consistent with “separate but ‘equal’ segregation, overruled by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)); see here for the history Richard Kluger’s Simple Justice, possibly the best book ever written about American law.

The Supreme Court has weaponized the First Amendment and handed it over to the corporations and the religious right. The Christian religious right, not the Muslim right. The stakes are high. Prepare for a very long and tough battle. Contribute to the ACLU and the National Lawyer’s Guild.