In parts of the political and legal worlds, the public testimony of former FBI Director James Comey will be scrutinized alongside the definition of obstruction of justice, a federal crime. Though the "high crimes and misdemeanors" that can bring down a U.S. president include acts that don’t trigger a legal indictment, allegations of obstructing justice led to the forced resignation of one president, Richard Nixon, and the attempted removal of another, Bill Clinton. Now there’s a vigorous public debate about whether President Donald Trump obstructed justice by trying to slow, stop or influence the ongoing investigation into Russia’s interference in the 2016 election.
1. What does obstruction of justice mean?
Most broadly, it’s the crime of trying to "influence, obstruct or impede the due administration of justice." The U.S. criminal code spells out almost 20 different categories of obstruction of justice, such as assaulting a process server or destroying corporate audit records. Nothing in the code directly addresses a president pressuring or firing the director of the Federal Bureau of Investigation -- who serves, after all, at the president’s pleasure -- but a few sections could be read as applying to Trump and Comey.
2. How may have Trump obstructed justice?
The White House, and some outside lawyers, say he hasn’t. But others say he at least tried to obstruct a criminal investigation by allegedly asking Comey to have the FBI go easy on Trump’s first national security adviser, Michael Flynn; by allegedly urging the director of national intelligence, Dan Coats, and head of the National Security Agency, Mike Rogers, to publicly deny the existence of evidence of collusion between his campaign and Russia; and by firing Comey three months after requesting (and not getting) leniency for Flynn. Critics say Trump’s obstruction was expressed most clearly when he told a television interviewer that he was thinking about how "this Russia thing” was a "made-up” investigation when he fired Comey, and when he told Russia’s foreign minister that the firing had relieved "great pressure” on him.
3. Could Trump be charged with a crime?
That’s highly unlikely; it’s not even clear that any sitting president can be. The Justice Department’s view has been that the criminal prosecution of a president "would impermissibly interfere with the president’s ability to carry out his constitutionally assigned functions." There’s also a lively debate on whether an FBI investigation, such as the one Comey was leading, constitutes a "pending proceeding," which is a key element in the obstruction statute.
4. Then why so much attention on obstruction?
Because allegations of wrongdoing by a president, including obstructing justice, can lead to impeachment by Congress.
5. Is obstruction of justice an impeachable offense?
Virtually anything can be an impeachable offense if enough members of Congress deem it so. The U.S. Constitution says the president can be impeached and removed from office for "treason, bribery, or other high crimes and misdemeanors." The key phrase "high crimes and misdemeanors" doesn’t necessarily mean criminal conduct, but it’s often viewed that way.
6. How did obstruction charges play out with other presidents?
In 1998, the House of Representatives approved two articles of impeachment against Clinton -- one alleging perjury, the other obstruction of justice, both stemming from a sexual-harassment lawsuit. Fifty senators voted to remove him for obstruction of justice, and 45 voted to remove him for perjury -- both shy of the two-thirds majority needed. In Nixon’s case, the House Judiciary Committee in 1974 approved three articles of impeachment accusing him of obstruction of justice, abuse of power and contempt of Congress, for his role in violating the constitutional rights of citizens, covering up the politically motivated break-in of the Democratic National Committee headquarters at Washington’s Watergate office building and refusing to provide evidence demanded by Congress. Nixon resigned when it became clear he would be impeached by the House and convicted by the Senate.
The Reference Shelf
- QuickTake Q&As on impeachment, the special counsel overseeing the criminal investigation and the origins of the whole Trump-Russia saga.
- Pressuring someone doesn’t constitute obstruction, Andrew C. McCarthy writes in National Review.
- A Congressional Research Service report on obstruction of justice.
- Bloomberg View columnist Noah Feldman on the difference between crimes and high crimes.