Do all trial lawyers agree that the obstruction of justice case against Trump is “open and shut” and a “slam dunk”?

If you believe headline writers for Slate, the obstruction of justice case against Donald Trump is “Open and Shut” and is “already a slam dunk.”  However, the author of the essay behind those headlines – Duke Law’s own Sam Buell – pointedly insists that those are not his words, and I can understand why.

For sure, Sam believes that “from the standpoint of strict legal analysis, there’s just one conclusion: All available evidence says he did [obstruct justice].”  That’s not, however, quite the same as Sam saying that a lay jury would necessarily come to that same conclusion.  As Sam himself observes in his superb book, Capital Offenses: Business Crime and Punishment in America’s Corporate Ages (Norton, 2016): “The jury trial is like democracy: the most flawed system known to mankind, except all the others.”

Sam has authentic street cred as a prosecutor.  As a former assistant U.S. Attorney who prosecuted mob figures in Boston, he was also part of the task force that successfully convicted miscreants in the Enron case.  Indeed, he is one of the very few prosecutors to earn praise (and escape literary indictment!) in Jesse Eisinger’s scathing new book, The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives (Simon & Schuster, 2017).

My own experience is different and, frankly, arguably less relevant.  As a prosecutor, defense counsel, and judge in the military, I participated in lots of trials (maybe 200?), scores of which were heard by juries (called “panels” in military law parlance).  Courts-martial under the Uniform Code of Military Justice (10 U.S.C. §801 et. seq.) are similar to trials in Federal district courts (e.g., by law –10 U.S.C. §836 – the Military Rules of Evidence must largely mirror the Federal Rules of Evidence).

It is, however, true that court-martial jurors (called “members” in military law) are not randomly selected members of the armed forces.  Rather, Congress requires (10 U.S.C. §825) that: “When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”

Moreover, because military juries are typically all-officer panels, virtually everyone has at least a bachelor’s degree, and about half will likely have a graduate degree of some kind.  In my experience, these officers tend to listen quite closely to the judge’s instructions, and can be very particular, even persnickety, about the precise meaning of words.  They have no compunction about acquitting even if they sense guilt in the accused if they nevertheless believe the government hasn’t fully carried its proof-beyond-a-reasonable-doubt burden in all its technical complexity.

With that context, let’s put aside any animus one might have about Trump personally, and assess the case objectively from a trial lawyer’s perspective – let’s play devil’s advocate’, as it were.  So what is the evidence?  While we don’t know what Special Counsel Robert Mueller’s investigation (or Congress’) might unearth, the centerpiece of the evidence available today is unquestionably former FBI Director James Comey’s prepared statement for the Senate’s Select Committee on Intelligence hearing held in early June, along with the transcript of his responses to questions during that session.

Before we get to that, let’s consider that Sam says that “Comey’s credibility—on recall, detail, résumé, demeanor, bias, intelligence, contemporaneous documentation, and other standard witness metrics—is exceptionally strong,” and I agree.  However, juries are drawn from the general public – not from faculty lounges at law schools – and a key poll taken after Comey’s testimony suggests that there are still lots of potential jurors (albeit a minority of the public) who would seem willing to question Comey’s behavior.  Writing on Lawfare, Elisabeth McElvein says:

With [Comey’s] the testimony billed as apolitical Super Bowl,” Americans’ acutely partisan assessment of the proceedings is to be expected: a Quinnipiac University poll found that a slim majority (54 percent) of Americans believe that President Trump fired former FBI Director Comey to disrupt the FBI’s investigation into possible coordination between the Trump campaign and the Russian government. This figure includes 89 percent of Democrats, 55 percent of independents, and just 13 percent of Republicans. By contrast, 39 percent of Americans believe that President Trump fired Director Comey because he had lost confidence in Comey’s ability to lead the FBI well. Support for this position breaks along similarly partisan lines, including a whopping 79 percent of Republicans, 38 percent of Independents and just six percent of Democrats. (Emphasis added.)

Could prosecutors get a jury exclusively from the “slim majority”?  Not likely in my opinion.

Sam also says that the “chances of impactful cross-examination [of Comey] are minimal.”  Again, that’s probably true – but maybe not.  A passage from Eisinger’s book caught my eye: in describing Comey’s demeanor as he spoke to some prosecutors in a matter unrelated to Trump, Eisinger said (p. xiii):

[Comey’s] delivery carried a humility practiced enough to suggest he knew he was good at it.  He had used his talents so often to keep a jury’s attention with jokes, knowing references, and pithy turns of phrase. (Emphasis added).

Reading that reminded me that even a truthful witness can come across as too prepared.  I thought of Max Steuer’s famous cross-examination of Kate Alterman in the Triangle Shirtwaist Factory Fire case, a trial many people thought was a ‘slam dunk’ but which nonetheless resulted in acquittals.  The case is something of a testament to the trial lawyer’s axiom that it’s a liability for a witness if they are perceived by the jury as being overly “practiced.”

Of course, Comey is hardly the immigrant girl facing an experienced trial lawyer that Alterman was.  Nevertheless, a well-planned cross-examination delving into Comey’s preparation for his testimony, his own prosecutorial background, Deputy Attorney General Rod Rosenstein’s memo criticizing Comey’s behavior, and even Comey’s reputation as reflected in the passage in Eisinger’s book, might allow a savvy defense counsel to paint Comey not as a honest and hard-working public servant, but rather as a slick and devious lawyer out to fool them.  That would not be helpful to the prosecution.  The blog Above the Law cited a Pew Research Center poll in concluding that lawyers are in the “most despised profession in America.”

Comey may also be subject to cross-examination about the handling of the memos he made of his private conversations with Trump, one of which was passed to a journalist.  The Hill is reporting that the FBI now considers the memos to be official documents, and apparently has classified one or more of them.  Thus, defense counsel might be able to make Comey’s handling of classified material and official records – as well as his compliance with internal FBI procedures – to reflect poorly on his judgement and even his integrity.

And there is the CNN revelation that last summer Comey acted on “Russian intelligence he knew was fake” in closing the Clinton investigation, and did so, according to CNN, without informing Congress about the purportedly “fake” material, even in closed session (see the discussion here).  In short, there are a number of areas that a defense counsel could exploit, and I’d look for him or her to spend most of  cross-examination on these matters as opposed to the substance of his Senate testimony.

Sam cogently summarizes what prosecutors have to prove in an obstruction of justice case.  In this instance, the proceeding to which the obstruction charge would relate, Sam says, would be “the potential prosecution of his former national security adviser [Michael Flynn].”  One of those necessary elements would be proving beyond a reasonable doubt that Trump entertained a “corrupt intent,” which Sam advises has been defined in federal court rulings to mean a state of mind “with an improper purpose to obstruct justice.”

Let’s take a look at some extracts of Comey’s testimony to the Senate Select Intelligence Committee on June 8th that seem relevant to this charge (bolding added):

[RISCH:] You wrote down the words so we can all have the words in front of us now. There’s 28 words there that are in quotes, and it says, quote, “I hope” — this is the president speaking — “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.”

Now those are his exact words, is that correct?

COMEY: Correct.

RISCH: And you wrote them here, and you put them in quotes?

COMEY: Correct.

RISCH: Thank you for that. He did not direct you to let it go.

COMEY: Not in his words, no.

RISCH: He did not order you to let it go.

COMEY: Again, those words are not an order.

RISCH: He said, “I hope.” Now, like me, you probably did hundreds of cases, maybe thousands of cases charging people with criminal offenses. And, of course, you have knowledge of the thousands of cases out there that — where people have been charged.

Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this — they said, or thought, they hoped for an outcome?

COMEY: I don’t know well enough to answer. And the reason I keep saying his words is I took it as a direction.

RISCH: Right.

COMEY: I mean, this is the president of the United States, with me alone, saying, “I hope” this. I took it as, this is what he wants me to do.


COMEY: Now I — I didn’t obey that, but that’s the way I took it.

RISCH: You — you may have taken it as a direction, but that’s not what he said.


COMEY: Correct. I — that’s why…

RISCH: He said — he said, “I hope.”

COMEY: Those are exact words, correct.

RISCH: OK, do you (ph) — you don’t know of anyone that’s ever been charged for hoping something. Is that a fair statement?

COMEY: I don’t, as I sit here.

As a matter of trial tactics, I don’t think a defense counsel would expect to “crack” someone like Comey on the witness stand.  Rather, it may be better just to get this testimony into evidence, and interpret it for the jury during final argument.  Sam may differ with me here, but I think it would be quite plausible that jurors would not consider, for example, a statement that they or a family member might say to a highway patrolman such as “officer, I hope you could see your way clear to give me a warning instead of a speeding ticket” to be obstruction of justice.  But Sam says:

As a matter of law, expressinghope can constitute obstruction of justice. The judicial decisions in obstruction of justice cases are replete with examples of people prosecuted for attempting to influence others subtly and through less than direct orders. 

The question is not, however, what appellate judges might conclude, but whether the jurors – in sufficient numbers – would take a nefarious-enough view of the word “hope.”  And, sure, it is coming from the President, but Comey, as his testimony reveals, evidently didn’t consider this serious or specific enough that he had to obey it or, for that matter, even tell the President (or anyone else) he wasn’t going to act on it (even though, as we’ll see below, Comey thought Trump had the legal authority to direct him to drop the investigation).

Consider this from Comey’s prepared statement:

I immediately prepared an unclassified memo of the conversation about Flynn and discussed the matter with FBI senior leadership. I had understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December. I did not understand the President to be talking about the broader investigation into Russia or possible links to his campaign. I could be wrong, but I took him to be focusing on what had just happened with Flynn’s departure and the controversy around his account of his phone calls. Regardless, it was very concerning, given the FBI’s role as an independent investigative agency.

It would seem to me that given that even Comey admits that the words were “not an order,” and that he himself – a very experienced lawyer who had plenty of time to think about it – still characterized the statement as simply a “request,” a lay jury might have a hard time concluding beyond a reasonable doubt that the statement was a criminal act.

Perhaps more important is this testimony:

LANKFORD: OK. That’s fair enough. If — if the president wanted to stop an investigation, how would he do that? Knowing it’s an ongoing criminal investigation or counterintelligence investigation.

Would that be a matter of trying to go to you — you perceive and to say you make it stop because he doesn’t have the authority to stop or how — how would the president make an ongoing investigation stop?

COMEY: Again, 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.

I think he has the legal authority because all of us ultimately report in the executive branch up to the president.

Given that Comey had many years’ experience as a Federal prosecutor, it might be plausible for a jury to think something along the lines of “if Comey, with his law degree and prosecutorial experience, thought that what he perceived Trump was saying was actually legal, how can we convict a guy like Trump with no legal training doing what even the head of the FBI thought months later Trump could lawfully do?” This might prompt a juror to ask herself (or himself) something like “how can I say under those circumstances that, beyond a reasonable doubt, Trump entertained a “corrupt intent”?” Let’s not forget that it only takes one juror to block a conviction and produce a hung jury.

Moreover, doesn’t this put Comey in a peculiar position, that is, he believes that he has been given a directive to shut down an investigation, and he believes the source of that directive has legal authority to give that directive, yet despite his obligations as FBI Director, he doesn’t obey what he thinks is lawful direction?

Regardless, Sam contends:

The ultimate question is not whether President Trump thought he was legally allowed to cajole Comey about the Flynn investigation—ignorance of the law would be no excuse—but whether, when he did so, the president acted with a purpose that was “improper.”

Sam is confident that the circumstances indicate that the purpose was improper.  Again, Sam has a point, but I would suggest that a jury might find Comey’s rendition of Trump’s reasoning  – that Flynn is a “good guy” (an assessment of Flynn with which Comey agreed) – was not improper.  There could be evidence that investigators and, indeed, prosecutors take into account a suspect’s character in determining dispositions.  It may be, for many reasons, that being a “good guy” is not alone sufficient to end an investigation, but that is altogether different from concluding, as a matter of law, that a request for that reason was improper to the point of constituting an obstruction of justice.

Still, what about the implications of this “lawfulness” argument?  As Professor Richard Pildes discusses in a blog post that Sam cites, Harvard Professor Alan Dershowitz presents an argument that would exonerate Trump irrespective of his intent.  Pildes summarizes Deershowitz’s argument this way:

Even if the President ordered James Comey to shut down the Flynn investigation and had a corrupt intent for doing so, this would still not amount to the crime of obstruction of justice.  The reason, according to Dershowitz, is that the Constitution gives the exclusive power to the President to control all federal law-enforcement investigations—and thus to shut any of them down for any reason the President sees fit.  In other words, the President can never commit obstruction of justice by shutting down a criminal investigation or prosecution.

But both Pildes and Sam reject Dershowitz’s analysis because, as Sam puts it, the “Supreme Court has already acknowledged the inescapable logic that the president’s authority over federal law enforcement does not include the freedom to prevent investigation and prosecution of himself and his close aides.”

Maybe. But they rely upon the 1988 case of Morrison v. Olson, which did not involve the FBI Director, but rather an independent counsel appointed under a specific statute designed for investigating Federal officials. Among other things, it uniquely limits the basis for the removal of a special counsel to a finding of “good cause.”  The Trump case is, however, different.  As the Congressional Research Service notes, “[t]here are no statutory conditions on the President’s authority to remove the FBI Director.”

It’s complicated, but the Olson Court concluded that it “is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity…. Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel.”

The Court goes on:

Most importantly, the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an independent counsel…The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not “possible” to do so.

Finally, the Court says:

Notwithstanding the fact that the counsel is to some degree “independent” and free from Executive supervision to a greater extent than other federal prosecutors, in our view, these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. (Emphasis added).

Taken together, it seems to me that the FBI Director – who is, in any event, not a prosecutor – does not necessarily benefit from the “some degree” of independence the independent counsel statute affords those appointed to that very specific duty.  In short, whatever Olson may do for independent counsel, it might not extend, as the Court put it, to “other federal prosecutors” or, especially, FBI investigatory personnel to include the Director.

Sam argues, correctly I think, that Dershowitz’s argument could “excuse a parade of horribles including, hypothetically, a president who ordered his FBI director to mire an election opponent in a costly and distracting investigation for political reasons, or a president who ordered the halt to a murder investigation that might implicate a staff member.”

The Constitution does not, however, leave the Republic powerless – even absent an FBI investigation or a prosecution in a Federal court.  Specifically, Congress can not only conduct its own investigation, it can act on it to impeach a President if it finds his behavior constitutes “high crimes and misdemeanors.”  What are they?  The Congressional Research Service explains:

Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.

Thus, our discussion may simply be an academic one because, irrespective of the technicalities of criminal law – or the vagaries of juries – in a Federal trial on obstruction of justice charges, Congress has almost complete discretion to determine what is – or is not – an impeachable offense.  I agree with Sam that the “the ultimate issue…will come down to the political question of impeachment.”

Anyway, I haven’t addressed all the matters Sam raises (including his important observation that “the Justice Department, as well as many scholars, have opined that a sitting president cannot be indicted and tried for a crime”), so I urge you to read his essay (again, it’s found here).

And as we like to say on Lawfire, gather the facts, examine the arguments, and make your own decision!!!

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