As recently as Valentine's Day, Donald Trump's presidency seemed like it was on solid ground. Sure, his Muslim travel ban had been blocked in court, his agenda wasn't really moving in Congress, and his administration was a cesspool of gossip and sniping. But his party controlled the entire federal government, he had just nominated Neil Gorsuch to the Supreme Court, and if he hadn't yet transformed America the way he said he would, he was virtually assured four years in the White House.
Then Michael Flynn got sacked, and the multifaceted FBI investigation into alleged collusion between Trump's campaign and Russia began to engulf his presidency.
On Tuesday, things took a significant lurch toward the Nixonian: The New York Times reported the president asked FBI director James Comey to drop the investigation into Flynn on February 14, the day after the general's ouster. Instead of doing that, Comey apparently wrote down everything he could remember about the conversation and told some fellow FBI guys about it. Now Jason Chaffetz, the Utah Republican who chairs the House Oversight Committee, is threatening to subpoena the memo if it's not produced in a matter of days—a dramatic turn after paying little attention to Trump's conflicts of interest and other scandals for months. Meanwhile, the definition of "obstruction of justice" is being discussed by senators from both parties. One former Trump campaign official, who now works in a senior role in the White House, went so far as to tell the Daily Beast late Tuesday, "I don't see how Trump isn't completely fucked."
But is this really Impeachment Level Shit, as liberals have been dreaming about since November? Or if impeachment is a political impossibility, are there grounds here for an old-school criminal prosecution? And how close are we to Richard Nixon territory?
For answers to these important and not remotely leading questions, I called up Noah Feldman, a Harvard legal historian who's written extensively about Trump and the law. Here's what we talked about:
VICE: What precedent is there for a president making this kind of directive in American history—saying, "Hey, I like this guy (in this case Michael Flynn), he was good to me, so maybe go easy on him"?
Noah Feldman: I don't know of a modern one. In the modern era, there's been a strong tradition of differentiating law enforcement from politics, and this grossly violates that tradition. Certainly, in the Nixon administration, Attorney General John Mitchell* was fully implicated in the White House cover-up. So in a sense that's the closest analogy, but it's not exactly the same as this. That's more overtly bad. This is bad, but in theory, it's within the president's constitutional authority to end any investigation that he wants to end. And it's also within the bounds of imagination that you could not go after someone on the basis of his long career and good moral character.
Did the president commit a crime when he had that conversation with Comey?
What the president did is an outrage. It's impeachable, and obstruction of justice in the sense of being a "high crime and misdemeanor." But it's almost certainly not a crime of obstruction of justice.
So the distinction you're making is between what would be a crime for you or me to commit versus a guy who lives in the White House?
Exactly. The word "high"—people have just lost track of this—in "high crimes and misdemeanors" does all the work. It does not mean ordinary statutory violations. It mean acts by the president in the exercise of his office that abuse power, are corrupt, or undermine the rule of law. That's the essence of what high crimes and misdemeanors have always been—they meant that before the founding, they've meant that ever since. You can impeach someone who hasn't committed any demonstrable federal crime, or state crime for that matter.
This is obstruction in that sense, because the president is trying to block an investigation into someone in his administration who was involved in his campaign and might well lead to him. But is it a criminal act? That's very hard to prove and possibly not even the case under the statute, insofar as the president has to have acted "corruptly. " And even if he's seeking to avoid embarrassment, it's not clear that that's a corrupt act.
What would a regular crime of obstruction of justice look like?
It would be if the president owed a favor to the Mafia, and there was a Mafia figure under investigation, and the president said, "Don't investigate the guy." That seems to be like it would satisfy the "corruptly" component, even though there was no threat [to retaliate]. So to me that's a credible case; you'd still have to prove it. In this instance, it's just not as obvious that it's corrupt even if his goal was to protect his own administration from embarrassment.
One point I'm seeing some experts make is that it's not clear you can make an obstruction criminal case without a threat.
Well, that's true. If you read the statute carefully, it says you can obstruct the course of justice one of three ways: corruptly, by a threat, or by an act of intimidation. This is not a threat, this is not an act of intimidation, and the reason it isn't is the president has the authority to stop the investigation. He's the prosecutor-in-chief, he legally could have done that—he could have ordered Comey to stop the investigation. He could have fired Comey, which he eventually did.
In the real world, you don't bring obstruction cases without some kind of a threat or act of intimidation, or other direction mechanism like a lie. Because if you think about it, every prosecutor every day makes decisions about who to go after, and many criminals are not prosecuted because some prosecutor has made the decision not to prosecute them. When a US attorney says to an assistant US attorney, "Don't go forward with this case, because I just decided that on the balance we shouldn't go forward with it," he's giving an order to stop a prosecution, but it's not obstruction of justice—that's doing his job.
You called the president the "prosecutor-in-chief." Does that mean that the idea that the Justice Department should conduct itself impartially and independently from the executive branch is just a question of norms as opposed to the Constitution?
That's exactly right. It's completely a question of overwhelming norms, with maybe some minor regulations or statutes attached to it. But in the end, under our Constitution the president has to be able to make prosecutorial decisions with respect to people who work for him.
So just to clarify, this looks like obstruction of justice in the high crimes and misdemeanors sense but not in the Jeff Sessions–led Justice Department will do anything about it sense?
Correct. And frankly, breaking the norm of politicizing law enforcement—it's a great basis for impeachment. It's not a crime, and in fact it's in the president's constitutional authority, but it's still impeachable. That's the whole point—the president can do things within his legal constitutional authority where the only sanction available under our system is impeachment.
How does this situation compare to the breaking point in 1974 for Richard Nixon?
It's a very complicated question. My best sense is that in the Nixon process, the key moment was when it became relatively clear to the public that the president knew there had been a crime and was running a cover-up of it. And that required the tapes. Short of that, Nixon might well have survived. There had been an old-fashioned crime—a break-in—the president knew about it, and he was hiding that information, and we only found out about that because of the tapes.
We're nowhere near any of those three things. So far, there is no crime. There is all kinds of talk about an investigation of a crime. But no one yet can point to a crime. Maybe there are tapes, but we don't know about them yet.
Maybe this is the first bit of evidence that maybe there was something like a cover-up that the president participated in. So that would be one of those three elements maybe beginning to emerge. But I think we're actually pretty far from the point where Nixon was forced into actual resignation.
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*Correction 05/17/2017: An earlier version of this story incorrectly described White House Counsel John Dean as Attorney General.