Just one day after national security adviser Michael Flynn resigned his post in February amid an outcry over his ties to Russia, President Donald Trump reportedly called ex-FBI Director James Comey into the Oval Office with a request.
“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said, according to a memo that Comey allegedly wrote right after the meeting, which was uncovered Tuesday by the New York Times and whose existence VICE News has confirmed. “He is a good guy. I hope you can let this go.”
This memo appears to be the strongest evidence yet that Trump sought to interfere with a federal investigation into his campaign’s ties to Russia, and in the process perhaps committed obstruction of justice – an offense for which he could face impeachment. But, legal experts warn, the government will likely need more evidence before that process can begin.
The main question facing those seeking impeachment, legal analysts say, is determining whether Trump acted with intent. According to the U.S. Attorneys’ Manual, the government must show that Trump “corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law.” And that could be difficult.
“Everything depends on intent, and it seems unlikely,” says Michael McConnell, director of the Constitutional Law Center at Stanford Law School. But he added, “When I say unlikely, I don’t mean impossible.”
Ironically, while Trump’s shifting explanations into why he fired Comey last week have damaged his credibility and that of his officials, these inconsistencies could actually help his case against obstruction because they mean “proving [Trump’s] precise mind beyond a reasonable doubt might be very tricky,” writers at the Lawfare blog point out.
In his letter firing Comey, Trump said he was terminating the FBI director after recommendations from Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. But he later told NBC’s Lester Holt that he planned to fire Comey “regardless of [Rosenstein’s] memo.” Trump added that the federal investigation into Russia played a role in his decision, saying, “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. It’s an excuse by the Democrats for having lost an election that they should have won.’”
Trump’s comments linking Comey’s firing to the investigation into Russian interference in the 2016 election could be used to prove his intent to obstruct justice, former federal prosecutor Barak Cohen told the Washington Post. The government might also look closely at Trump’s admission that he repeatedly asked Comey to reassure him that he was not under investigation, and at his calling the inquiry “fake news,” since this pattern of behavior may suggest that Trump wants to undermine the investigation.
Adam Winkler, a professor of constitutional law at University of California Los Angeles Law, believes that if the New York Times report is accurate, its revelations would likely be enough to impeach Trump.
“The statement is evidence of the intent,” he told VICE News. “Do you think it would be hard to persuade a jury of your peers that someone who says, ‘I want you to stop doing something’ has the intent to make someone stop doing something?”
Details about Trump and Comey’s alleged conversation remain hazy, as reporters have yet to see the actual memo, and McConnell cautions that people should stay away from “partisan-motivated, quick-on-the-trigger talk of impeachment right now,” until more information about the exchange emerges. Comey reportedly took detailed notes about all his meetings with Trump, and Republican Rep. Jason Chaffetz of Utah demanded Tuesday that the FBI turn these memos over to the House Committee on Oversight and Government Reform as part of their Russia investigation.
For Richard Painter, former chief ethics lawyer for George W. Bush, Trump’s alleged conversation with Comey would likely would rise to the level of obstruction of justice if it’s revealed that Trump implicitly or explicitly threatened to fire Comey if he didn’t “let” the investigation go as Trump wanted. Either way, Painter told VICE News, “[He] shouldn’t talk to the FBI about pending investigations, particularly if someone used to be in his administration, because it’s inappropriate… Even if it’s not criminal, it could be viewed as an abuse of power.”
Ultimately, though, the question of whether Trump will face impeachment is not just about the law, but also about political will. Because the executive branch has long believed that the president is legally immune from prosecution, according to Lawfare, only Congress can decide to kick Trump out of office. A majority of the House of Representatives must vote to impeach him and two-thirds of the Senate must agree to remove him.
“Nixon was not impeached upon the first rumors in the New York Times about wrongdoing,” McConnell said (while the House of Representatives’ Judiciary Committee approved articles for impeachment against Richard Nixon, including one on obstruction of justice, Nixon ended up resigning before he could be officially impeached). “He was impeached after [a considerable amount of] process, and a smoking gun, and a bipartisan consensus that he had committed serious breach of trust.”
But the memo may prove to be a pivotal moment in the intensifying efforts to remove Trump from the presidency. Winkler said he has so far turned down requests to participate in any efforts to impeach Trump — but he’s now convinced Trump committed “a high crime and misdemeanor,” qualifying him for impeachment.
“On a long list of mistakes and bad judgment calls,” Winkler said, “this is by far the worst.”