There are plenty of unanswered questions surrounding Russian interference in the 2016 U.S. elections, including the extent to which associates of Donald Trump may have colluded with the Russian government. We will continue to demand the truth, and continue to pressure Members of Congress to do more to get it. However, if Donald Trump knowingly interfered with the FBI investigation, as James Comey has now confirmed in Senate testimony, make no mistake: that is an impeachable offense.
In this explainer, we break down why obstruction of justice is such a serious crime, what actions legally constitute obstruction of justice, and describe how Trump’s crimes have put him in great legal jeopardy. We connect the dots so you can speak to your Member of Congress armed with the facts about Trump's obstruction of justice.
Obstruction of Justice—A Serious Federal Crime
What is obstruction of justice?
The term obstruction of justice generally describes any attempt (successful or not) to prevent or interfere with the discovery, apprehension, conviction or punishment of a person who has committed a crime. In engaging in obstruction of justice, the goal might be to influence or hinder the activities of law enforcement agents, to delay or stifle court testimony, to destroy evidence, or to evade a subpoena or other official proceeding.
Why is obstruction of justice so serious?
Federal law treats obstruction of justice as such a serious crime because it attacks one of the cornerstones of our democracy: the rule of law. If obstruction of justice is allowed to go unchecked, the powerful could use their influence to engage in criminal wrongdoing with impunity. At its heart, obstruction of justice is so serious because we believe that no one is above the law, no one can use their power or influence to shut-down or to delay a lawful investigation.
What laws cover obstruction of justice?
Obstruction of justice is defined as a federal crime in a number of U.S. statutes, however, some common examples include the following:
- Obstruction of Pending Proceeding—A defendant may be found guilty of obstruction of justice when a prosecutor can show that: 1) there was a proceeding pending before a department or agency of the United States (potentially including an FBI investigation); (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.
- Tampering With Victims, Witnesses, Or Informants—Significantly, the law covers attempts to threaten or corruptly persuade someone to block testimony about criminal wrongdoing. This includes actions or attempts to intimidate, threaten, or corruptly persuade another person with the intent of preventing testimony in an official proceeding, or hinder communication to a law enforcement officer.
Testimony From James Comey and Trump’s Own Admission
In testimony before the Senate Intelligence Committee, former FBI Director James Comey revealed repeated attempts by Donald Trump to interfere in an ongoing FBI investigation. If true, this would constitute obstruction of justice. Period. But that’s not all the evidence we have. We also have Donald Trump’s own words that deserve further investigation:
- One day after firing Comey, Trump bragged to Russian officials in the Oval Office that he “faced great pressure because of Russia. That's taken off,” with Comey out of the way.
- In an interview with NBC’s Lester Holt on May 11, 2017, Trump admitted point-blank the Russia investigation was on his mind when Comey was fired.
- In March 2017, Trump pressured both the Director of National Intelligence and Director of the National Security Agency to publicly undercut the FBI investigation, even asking intelligence officials to move to kill the FBI inquiry.
Key context to keep in mind: Comey had recently requested more resources for the FBI investigation into Russian government ties to the Trump campaign—which adds further evidence that Trump was acting to kill an investigation he increasingly viewed as a threat to his presidency.
Be aware that Trump is NOT the only Administration official who is at risk of obstruction of justice—if it comes to light that any other federal official knowingly participated in Trump’s plan to subvert the FBI’s investigation of Michael Flynn or the larger Russian collusion investigation, then they are also in legal jeopardy.
Obstruction of Justice—The Nixon and Watergate Example
Obstruction of justice is often mentioned in connection with Nixon’s resignation as a result of the crimes of the Watergate scandal. As a report in the Lawfare blog notes: “Obstruction of justice formed the first article of impeachment of President Nixon.” In fact, it was obstruction of justice that brought down Nixon, not the actual break-in and burglary of Democratic National Committee (DNC) offices at the Watergate hotel. The “smoking gun” that forced Nixon from office in disgrace was the President’s attempts to have the CIA pressure the FBI to drop its investigations into the Watergate burglary.
How you can resist with this information: When a president—as Nixon did, and as Trump appears to have done – tries to kill an active FBI investigation into criminal wrongdoing, this act itself is a serious, federal crime. This type of interference is an obstruction of justice—an impeachable offense for Trump, or any president. And, it is the responsibility of Congress to respond in the name of justice and in the name of democracy. Here’s what you can do to pressure your MoCs to do more.