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Did President Trump’s reported actions obstruct justice?

May 17, 2017 at 6:40 PM EDT
James Comey's reported disclosure that President Trump allegedly asked him to drop an FBI investigation has raised the question of -- and plenty of disagreement over -- whether that request may constitute obstruction of justice. John Yang gets reaction to that and the naming of a special counsel from William Jeffress of Baker Botts LLP and Michael Waldman of the Brennan Center for Justice.

JOHN YANG: The disclosure that President Trump allegedly asked Jim Comey to drop an FBI investigation has raised the question of whether this may constitute obstruction of justice. There’s plenty of disagreement.

To try to understand this, we are joined by Michael Waldman. He is president of the Brennan Center for Justice at the NYU School of Law. He also worked for President Bill Clinton. And William Jeffress, he is a trial lawyer who has worked on criminal and civil cases at Baker Botts. One of his best known cases was defending Scooter Libby, the chief of staff to former Vice President Dick Cheney.

Mr. Jeffress, let me begin with you.

I’m sure you have heard the news that Bob Mueller, the former FBI director, has now been named special counsel in the case involving the possible connections between the Trump campaign and Russia in last year’s campaign.

What’s your reaction to that?

WILLIAM JEFFRESS, Baker Botts LLP: Excellent choice, highly qualified, very well-respected. Couldn’t have a better person.

JOHN YANG: Michael Waldman, how about you? What do you think of this?

MICHAEL WALDMAN, Brennan Center for Justice: It’s encouraging news. He is very well-respected.

Some of the questions include, what would be the scope of his brief and what is his level of independence? Presumably, President Trump isn’t going to ask him, as alleged, for his loyalty, but is he only going to look at the potential collusion during the campaign or at some of these broader issues that amount to, if true, abuse of power and obstruction of justice?

JOHN YANG: And, Mr. Jeffress, is his representation such that you think this should put to rest any questions about this investigation?

WILLIAM JEFFRESS: I followed his career very closely, know him personally. It certainly puts to rest any question in my mind.

JOHN YANG: Let’s turn now to this question of obstruction of justice, and whether or not what the president has been doing constitutes it.

First of all, the legal definition under the law, obstruction of justice, Mr. Jeffress, what is it?

WILLIAM JEFFRESS: It’s corruptly endeavoring to influence an official proceeding.

JOHN YANG: Corruptly. Corruptly, what does that mean?

WILLIAM JEFFRESS: That’s the key word. It means for an improper purpose. It’s defined in the law.

And, you know, one could make a request of an FBI agent or, for that matter, the head of the FBI. If not done for an improper purpose, that wouldn’t be obstruction of justice. If done for an improper purpose, it would be.

JOHN YANG: Michael, anything you want to add to that or take away from that?

MICHAEL WALDMAN: Well, I think that’s correct.

The fact that, legally, the president can, for example, fire the FBI director is true, but not if it was done for corrupt purposes. And, you know, I have a right to drive a car, but not to drive a getaway car.

And so that is the kind of fact-based question that prosecutors and juries have to look at and also that the court of public opinion needs to look at.

Mr. Mueller has a legal brief, but, ultimately, as your story showed earlier, Congress has a very significant role to play in looking at the broader set of questions, including this.

JOHN YANG: Then do you think what the president has done or alleged to have done with — with James Comey and his discussions with Mr. Comey, does that constitute obstruction of justice in your mind, Michael?

MICHAEL WALDMAN: Again, assuming that the allegations are true, it raises very serious questions and comes close to the kind of obstruction of justice that has led to impeachment proceedings, for example, against Richard Nixon.

We know that he asked Mr. Comey for his loyalty. We know that, according to these news reports, he pulled him aside, told the attorney general to leave the room, and asked him — as his supervisor, asked him to drop the investigation of his national security adviser, and when he didn’t drop that investigation, actually asked to expand it, we know that he fired Mr. Comey, and then went on national television to say that the reason in his mind was — quote — the Trump-Russia thing.”

Those are all bits of evidence that suggest a very worrisome pattern that could in fact amount to obstruction of justice. It’s certainly an abuse of power and a risk, I would say, to the rule of law.

JOHN YANG: Mr. Jeffress what, do you think?

WILLIAM JEFFRESS: Well, focusing on the conversation with Director Comey about General Flynn, based on what Mr. Trump has said, that he made that request because he thought General Flynn was a good man, and presumably suffered enough by being fired, that wouldn’t be a provable case of obstruction of justice.

But there are other hypotheticals. And there’s certainly reason to investigate. For example, if Mr. Trump knew that General Flynn had incriminating information on Mr. Trump having to do with the Russia investigation and made this request of Mr. Comey in order to keep Mr. Flynn — General Flynn quiet, that would be obstruction.

JOHN YANG: Because that would — that would satisfy the corruptly — acting corruptly?

WILLIAM JEFFRESS: That would be an improper purpose, yes, to keep a witness quiet.

JOHN YANG: And, in this discussion, can a president, Mr. Jeffress, can a president be indicted?

WILLIAM JEFFRESS: Not while he’s sitting. That seems to be settled. He can be impeached and could be indicted after being impeached if — once he’s removed from office.

JOHN YANG: And so, Michael, this becomes not — then that becomes a question of not so much a legal question of what the law says, but it becomes a political question, does it not, of what Congress says, what the House says in drafting a bill of indictment and what the Senate would say in whether to convict on that bill.

MICHAEL WALDMAN: I do think that’s exactly right.

You had, for example, during Watergate the grand jury then named President Nixon as an unindicted co-conspirator, but the real action was during the impeachment proceedings.

I think impeachment is a pretty strong remedy. I would like to start by seeing meaningful and public congressional investigations, whether by a select committee or by a 9/11 Commission-style independent panel to look into the very things that Mr. Jeffress has discussed.

Remember, we’re looking at the actions by a hostile foreign power to undermine our democracy, potentially the collusion with one of the campaigns with that action, and now we see what looks like, if it is in fact the motives that seem to be in play, a corrupt effort to undermine that investigation.

In other words, even the best of prosecutors proceeds in secret and looks to see whether there’s a law broken or not. But the public has a reason to want to know the broader set of questions and patterns. So it really does come down to Congress, where there’s more running around, more action, but I would like to see some coordinated and meaningful oversight here.

JOHN YANG: But, Mr. Jeffress, I take it from what you said that you think this all really does depend, then, on whether Mr. Mueller is going to investigate about whether or not there is a real link with General Flynn and the Russians and whether President Trump knew about that. Is that right?

WILLIAM JEFFRESS: Certainly, he’s going to investigate what Mr. Flynn said to the FBI, what he said to Vice President Pence, what he — his actual conversation with the Russian ambassador, and what did President Trump know about all that or have to do with it?

JOHN YANG: William Jeffress, Michael Waldman, I’m sure we are going to be talking about this a lot in the future, but thanks for joining us.