In the frenzied days since Donald Trump fired James Comey, all the original justifications have been shredded. To quote Richard Nixon’s press secretary Ron Ziegler (the Sean Spicer of his day), they are now “inoperative.”
Trump’s defenders still hug tight to one argument. Like any president, they note, Trump has the legal right to dismiss the FBI director. Comey himself told the FBI staff, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” Give him points for sportsmanship. And it’s true that the statute setting a ten year term says the president can remove the FBI chief—with no explicit requirement that it be “for cause,” as some other laws require.
Does that fact alone give Trump a free pass? As it turns out, emphatically, no. Donald Trump still could face of harsh legal jeopardy for firing Comey, depending on why he did it, and what else he did.
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Start with the law itself. It is simply not the case that something that’s legal under normal circumstances is always legal. I have a right to drive, but not to drive a getaway car. A business can have a policy of deleting all emails after thirty days. (Euphemistically known as “document retention.”) But if you begin to frantically shred documents after you get a subpoena, that’s different. Many things can become legal problems if they are designed to block an investigation.
The federal obstruction of justice statutes are notably expansive, as civil liberties advocates often warn. Section 1512 of Title 18 of the federal code makes it illegal when someone “obstructs, influences, or impedes any official proceeding, or attempts to do so.” That could bring a twenty year sentence.
What matters most is motive. Cue the President to Lester Holt: “And in fact 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’ve won.” Sarah Huckabee Sanders blithely explained from the White House podium that the firing would hasten the end of the investigation. “We’d love for this to be completed. But we also want it to be completed with integrity.”
Now, in the unlikely event that Trump were to ever be hauled before a jury, he would no doubt say he had other motives. Professors have noted that Trump also called Comey a “showboat.” Making a case would be hard. But Trump keeps blurting out incriminating evidence. There are the thuggish tweets attacking Sally Yates as she prepared to testify. His bizarre, barely literate warning: “James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!”
And there is the now-infamous January dinner, which seems like a House of Cards outtake. That’s the chilling chat where Trump demanded “loyalty” and asked if he were under investigation, all while implicitly dangling the chance for Comey to keep his job. (Add “am I under investigation” to “are you pregnant” on the list of things not to ask in job interviews.)
Context matters, too. Trump was no bystander. These officials all worked for him. If a President can simply derail an investigation by firing the investigator, just because the probe was getting close to the White House, there’s not much left of the crimnal law.
Given all this, why do his lawyers let him confess his intention to obstruct justice on national television? Don’t discount the possibility that Trump and his team are just winging it. Former White House counsel John Dean, who first organized and then exposed the Watergate cover-up, recounts how few White House staff members, mostly lawyers, were even familiar with the concept as they made their bungled plans for payoffs and perjury.
But don’t hold your breath for a prosecution. A president is held accountable, first and foremost, by Congress—by its power to probe, to investigate, and ultimately to remove from office. In the past, lawmakers took obstruction of justice seriously. The impeachement articles against Richard Nixon set the standard. “In violation of his constitutional duty to take care that the laws be faithfully executed,” the first article of impeachment declared, Nixon “has prevented, obstructed, and impeded the administration of justice.” It accused him of interfering “with the conduct of investigations” by the Justice Department and the FBI. That charge won substantial Republican votes. When the Republicans impeached Bill Clinton for the Monica Lewinsky scandal, they tried an obstruction of justice article, too. This one didn’t even get a majority of votes on the Senate floor, let alone the two thirds needed to convict. What mattered, in other words, was politics.
Lawmakers need to ask questions that go far beyond the specific legal topic of what criminal laws were violated. With increasing impunity, Trump is subverting the legal system itself. So far Congress is letting him do it. Some of this paralysis comes from partisanship. Some, I suspect, comes from astonishment. What could he possibly be up to? What’s driving him?
Sometimes the simplest answer is the right one. During the Watergate scandal, for over a year, pundits and lawmakers puzzled over Richard Nixon’s conduct. Wasn’t the cover-up worse than the crime? Was he acting out a deep seated set of neuroses? What if someone had told him they loved him (as Henry Kissinger asked)? Was he like Richard III, or some other tortured Shakespearean villain? Then it turned out, with the release of the “smoking gun” tape, that there was a much simpler answer: Nixon was guilty. He committed a crime and was rationally trying to cover it up.
So the fact that it’s legal to fire an FBI director turns out to matter very little. Trump seems to have fired Comey because the investigation was getting too close for comfort. He won’t face accountability first in a court of law, but in the court of public opinion.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author of The Fight to Vote.
