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Did Comey testimony shed light on whether Trump obstructed justice?

June 8, 2017 at 6:35 PM EDT
Perhaps the biggest question swirling around former FBI Director James Comey's testimony is whether President Trump or other White House officials obstructed justice. Judy Woodruff gets analysis from John Carlin, Carrie Cordero, Greg Craig and George Terwilliger, four people with extensive experience in government and the law.
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JUDY WOODRUFF: So, perhaps the biggest question, one of the biggest questions swirling around, has the president or have other White House officials in any way obstructed justice? We have had that question raised here.

Let’s listen to how a couple of senators pressed Comey on that point today.

SEN. JOE MANCHIN, D-W.Va.: Do you believe there were any tapes or recordings of your conversation with the president?

JAMES COMEY, Former Director, FBI: It never occurred to me until the president’s tweet. I’m not being facetious. I hope there are. And I will consent to the release of …

SEN. JOE MANCHIN: So, both of you are — both of you are in the same findings here. You both hope there’s tapes and recordings?

JAMES COMEY: Well all I can do is hope. The president surely knows if he taped me. And if he did, my feelings aren’t hurt. Release the entire — release all the tapes. I’m good with it.

SEN. JOE MANCHIN: Do you believe this will rise to obstruction of justice?

JAMES COMEY: I don’t know. That’s Bob Mueller’s job to sort that out.

SEN. MARTIN HEINRICH, D-N.M.: A lot of this comes down to, who should we believe? Do you want to say anything as to why we should believe you?

JAMES COMEY: My mother raised me not to say things like this about myself, so I’m not going to. I think people should look at the whole body of my testimony, because, as I used to say to juries, when I talked about a witness, you can’t cherry-pick it. You can’t say, I like these things he said, but, on this, he’s a dirty, rotten liar.

You have got to take it all together. And I’ve tried to be open and fair and transparent and accurate.

A really significant fact to me is, so why did he kick everybody out of the Oval Office? Why would you kick the attorney general, the president, the chief of staff out to talk to me if it was about something else? And so that, to me, as an investigator, is a very significant fact.

JUDY WOODRUFF: So, Greg Craig, are we any closer to knowing whether the president in any way committed obstruction of justice in here?

GREGORY CRAIG: I think he’s on very, very thin ice.

First of all, I think you have got a credible, plausible, believable witness in Jim Comey. And if you were betting between a swearing match between the president of the United States and Jim Comey, my money would be on Comey. Most jurors, most prosecutors would give him a good deal of faith in the truth of his testimony.

Secondly, the real issue here when it comes to a criminal prosecution is whether he falls within a Title 18 United States Code provision that almost word for word describes what some people would think Donald Trump has engaged in.

And most prosecutors that had that kind of evidence against an individual wouldn’t hesitate to bring a prosecution. It is, I believe, right now an indictable offense. But there’s no way in which you can bring that kind of case against a sitting president, so then you move to the question of whether this conduct rises to the level of an impeachable offense, because that’s the exclusive way that the Constitution lays out for limiting or removing the power of a president, a sitting president.

JUDY WOODRUFF: Is that how you’re thinking about this, Carrie Cordero?

CARRIE CORDERO: Well, I think, certainly, there is a difference between the criminal aspect, and what this is actually going to move to is whether or not obstruction can be found as a political matter.

But I think the other piece is that I think observers are looking for what’s the one act that is going to make the obstruction case? And I think, when they look at this, what we’re going to find is, there’s a timeline and there’s a series of events.

It was some of the conversations. It was the dinner meeting. It was the will you be loyal to me at the same time of discussing job security. It was the tweets, some of the tweets that exposed the investigation. It was the firing. And then it was the tweet sort of threatening that there are tapes.

And so I think when people look back at this, they’re going to look and they’re going to find a timeline that will eventually move towards the political consideration of obstruction.

(CROSSTALK)

GREGORY CRAIG: Can I just add that the president of the United States has also said that the reason he fired Comey was because of the Russian …

GEORGE TERWILLIGER: And that’s perfectly legal, because the president can’t obstruct justice by telling the director of the FBI to do or not do a particular investigation. It’s a unitary executive. The president is in charge of the executive.

JUDY WOODRUFF: What does unitary executive mean?

GEORGE TERWILLIGER: It means that the entire branch of government is embodied in one person, and that’s the president. So the president can give direction as to what should happen with cases.

And Carrie raises just the right point, that the resolution of the issue of — if there is an issue about the president’s action is political, not legal. The talk of obstruction of justice as a legal matter is meaningless. It might make for an interesting academic debate.

The president cannot obstruct justice by telling the director of the FBI, stop that investigation. There may be grand political consequences to doing so, but there’s no legal consequences.

JUDY WOODRUFF: And Greg — we just heard Greg say you then move on to the question of impeachment.

But, John Carlin, what about — is obstruction of justice as a question still on the table?

JOHN CARLIN: Look, the — it’s an important question.

The referral or saying it’s in the hands of the special counsel in that sense isn’t quite right. So, what the special counsel could do and approach it like a prosecutor and an investigator and say, is there a corrupt intent when the act was taken? Here, the act would be the firing.

I disagree with George on whether or not that would constitute the criminal offense. The guidance — the Justice Department guidance says not that you can’t commit a crime as president, but that you can’t be indicted while you’re the sitting president. So they could build out the facts. They could make out the elements of the case.

But then I do agree what there has been less focus on is, what happens with the special counsel’s report? Under the old statute, you knew that would go to Congress with a referral if they thought a crime would be committed.

Under the current terms, it actually is not clear. At the end of the day, the acting attorney general, which is Rod Rosenstein, needs to make a report to Congress. What’s in that report isn’t clear.

JUDY WOODRUFF: George, you shook your head.

GEORGE TERWILLIGER: Yes.

(CROSSTALK)

GEORGE TERWILLIGER: It’s not a matter of Justice Department guidance or procedure. It’s the Constitution.

The Constitution places the president in charge of the executive branch. I’m not trying to defend the decision, but the fact of the matter is, the president has complete and utter legal authority to fire the director of the FBI, including for pursuing a particular investigation.

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