Trump Can Not Be Prosecuted for Obstruction

Once again the establishment media is breathlessly reporting on the possibility of President Trump being prosecuted for Obstruction of Justice.  This idea is utterly preposterous.

During his over-hyped appearance before the Senate Intelligence Committee, James Comey testified that on February 5 he attended a routine counter-terrorism briefing in the Oval Office with President Trump and several other people.

At the end of the briefing Trump asked him to stay behind while everyone else left the room and closed the door. Then, according to Mr. Comey, the President said:

I want to talk to you about Mike Flynn….I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.

Comey says he wrote a contemporaneous “memo” immediately following the meeting as a record of this conversation because he considered it inappropriate “direction” from the President that he should drop the FBI’s investigation into Flynn’s communication with the Russian Ambassador back in December. 

After Trump fired him, Comey leaked the memo to the New York Times.  Since then the Washington establishment has been repeating, hysterically, that Trump’s words amount to Obstruction of Justice, a crime.  Indeed, Democrats used the O word several times during the Comey hearing.

Obviously Trump’s words could easily be interpreted as something other than “direction.” They could have been an expression of… well… the precise word Trump used: hope.  Police officers, FBI agents and Prosecutors hear the same kind of plea for leniency, from friends and families of suspects, every day.  Should all those people be prosecuted for “obstruction of justice”?  Of course not.  The review of relevant statutes below will demonstrate why not.

But let’s assume for the sake of discussion that what Comey says he “felt” is the correct interpretation, that the President’s vague, ambiguous language was meant to be taken as a direct order.  Would that make Trump guilty of a crime? 

The answer is no. 

In fact, Former Director Comey’s own testimony, excerpted below, actually helps blow away any possibility of a criminal charge against President Trump.

US Code, Title 18, Section 1510 describes obstruction of criminal investigations. There are several sections with most of them dealing with with narrow categories, such as financial and banking crimes, that are irrelevant to the allegation against the President.  The only portion that is remotely relevant criminalizes the use of bribery in an effort to prevent investigators from receiving information. Here it is:

Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both

Of course, our media elites will always avoid reading, analyzing or reporting to us the text of an actual statute.  They dismiss it as “down in the weeds.” 

But any criminal prosecution must begin with identifying a specific statute the accused is alleged to have violated.  So perhaps Director Comey could claim he perceived Trump as attempting to “bribe” him with the opportunity to keep his job, rather than being fired.  But, here’s the problem for Democrats and Media Trump-haters: 

Whether Trump meant to issue an order to end the investigation or was merely hoping it would end, he did not do what the statute describes, try to prevent information from reaching investigators.

It is not “obstruction of justice” when an official who is legally authorized to do so closes an investigation. Every day police and FBI investigations are closed without prosecuting anyone, even when there is some evidence of a crime.  The decision to close an investigation can be made by an official in the local FBI office in your city, by a higher-up in Washington Headquarters, or by the Director.

Comey himself closed a prominent, high profile investigation on world-wide television back on July 5, 2016.  He described secret, top secret and classified materials found illegally stored on Hillary Clinton’s unsecured, home email server.  Then, inexplicably, he declared the investigation closed with no prosecution.  Twelve days before the Presidential election he sent an open letter to inform Congress and the public that he had reopened the investigation.  Then, two days before the election he sent another public letter announcing it was closed again. 

Whether Trump was directing Comey or merely hoping the investigation would be closed, he was within his legal and Constitutional authority as President.  Under the Constitution The President is the ultimate boss, with total authority over every Executive Branch Department and Agency, including the FBI.  Any power or authority exercised by cabinet secretaries and department heads is delegated to them by the President.  None of them, including FBI Director is “independent” of the President.  Let me repeat because the media has spewed misinformation like a fire hose: The FBI is absolutley NOT an “independent” agency, nor is its Director “independent” of the President’s authority. Period

During his testimony Comey himself confirmed that the President has the authority to close an investigation.  Here’s the exchange with Senator James Lankford asking  questions:

Lankford: If the President wanted to stop an investigation, how would he do that?….How would the President make an ongoing investigation stop?

Comey: I’m not a legal scholar so smarter people answer this better, but I think as a legal matter, the President is the head of the Executive Branch and could direct – in theory, we have important norms against this – but direct that anybody be investigated or anybody not be investigated. He has the legal authority because all of us in the Executive Branch report up to the President.

Lankford: Would that be to you, would that be to the Attorney General, would that be to… who would do that?

Comey: If he wanted to issue a direct order he could do it in any way. He could do it through the Attorney General or issue it directly to me.

This is correct.  The President has plenary power (unqualified, unconditional power) over the operations of the Executive Branch.  He can order the FBI to do anything that is legal and Constitutional.  And, it IS legal for the FBI to close an investigation. 

One more seemingly unnoticed fact makes this whole obstruction story even more ludicrous: Trump’s motive for firing Comey could not have been to close an investigation because he DIDN’T order any investigation closed! The investigation into the hoax of Russian collusion and the investigation of Michael Flynn both continue to this day.

So keep in mind that no matter how many nattering “experts” preen before the cameras, saying otherwise, President Trump will not, can not be prosecuted for obstruction of justice. Period.

 

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