By the former director’s own account, the words Trump used left the decision about pursuing Flynn to Comey’s discretion — notwithstanding that, as chief executive, Trump had the legitimate authority to order Comey to close the case. Moreover, at the time these events actually happened, Comey took no action consistent with someone who understood himself to be under a directive by the president of the United States. He and the FBI continued the investigation.
Trump not only did not stop them from doing that. He never asked about the matter again. After the immediacy of the president’s anguish over having to fire his friend, Flynn seems to have faded from memory. Trump could have pardoned Flynn, he could have stepped in and ordered an end to the investigation at any time. He’s never done either.
Comey, meanwhile, also took no action consistent with someone who believed he had witnessed a crime. He now says he can’t say for sure whether it was or it wasn’t obstruction. But he is a highly experienced former prosecutor and investigator who has handled obstruction cases. He is an expert in this area of the law. At the time it happened, he did not report to his superiors at the Justice Department that the president had committed obstruction — although he would have been required to do that if he believed it had happened.
What about Congress? Did he report it to Congress, in whistleblower fashion?
Actually, he did the opposite.
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Patently, Comey and the FBI did not believe Trump had obstructed an investigation by lobbying on Flynn’s behalf. And just as patently, that’s because Trump did not do so: You cannot act corruptly – as the obstruction statute requires the government to prove beyond a reasonable doubt – if you do not believe what you are doing is against the law. Since Trump had as much authority as any prosecutor or FBI agent to weigh the merits of prosecuting Flynn, he cannot have acted corruptly in doing so.
So, given that no one who was aware of the facts believed that Trump had committed obstruction at the time the conduct occurred, why is Trump now reportedly under investigation for obstruction?
Trump did not do anything to interfere with the investigation of Russia’s interference in the election. According to Comey’s testimony, the president even said it would be good to find out if any of Trump’s “satellites” — his associates — had done anything wrong.
What the president appears to have objected to, and to have sought help refuting, was what he saw as the fraudulent claim — subtly advanced by Comey and perhaps others in the intelligence community — that he personally had colluded with Russia in connection with the election, and that he was a criminal suspect.
That is not obstruction of an investigation. It is objection to a narrative — a narrative that the intelligence agencies knew was false yet refused to correct, no matter how much it was, and is, damaging Trump’s capacity to govern.