Everyone’s favorite game these days seems to be parsing federal obstruction-of-justice statutes to confirm their previously held views about whether President Trump violated them in his interactions with, or termination of, FBI Director James B. Comey.
That debate over the president’s potential criminal liability took a new turn Wednesday with The Washington Post’s report that special counsel Robert S. Mueller III “is interviewing senior intelligence officials as part of a widening probe that now includes an examination of whether President Trump attempted to obstruct justice.”
It’s the wrong thing to focus on.
Too much time has been spent asking whether Trump might eventually be charged with a crime.
Whatever he did or didn’t do, there is virtually no chance he’ll be subject to a criminal prosecution as a result.
Because of that necessarily foregone conclusion, the debate over whether he is, or ought to be, subject to prosecution is distracting the discussion from the far more important question about the impact of his actions regarding the Russia investigation, which show flagrant disregard for longstanding institutional norms and, whatever their legality, ought to give serious pause to even his staunchest defenders.
Simply put, the more energy we spend litigating obstruction of justice, the more the president will avoid accountability for behavior that is politically, if not legally, indefensible.
Why won’t Trump face criminal indictment?
Constitutional scholars are divided on whether a sitting president may be subjected to a criminal indictment under any circumstances, even in cases in which no reasonable person could dispute the illegality of a president’s behavior.
And because courts tend to interpret statutes to avoid having to decide such weighty constitutional questions, the appropriate case to test that constitutional question would be one in which there was simply no debate that the president violated the plain text of a federal criminal law.
But here, at least based on what’s publicly known so far, the argument that Trump violated the federal obstruction statutes isn’t clear-cut.
Yes, the case can be, and has been, made.
But whether the president’s conversations with Comey about former national security adviser Michael Flynn, or his decision to dismiss Comey, violate those statutes is a close-enough call legally to make this a case in which courts would bend over backward to avoid settling such a momentous question.
This story won’t end with the first criminal prosecution of a sitting president.
That’s why a debate on the finer points of federal obstruction of justice law just isn’t fruitful right now.
What Congress and Mueller can’t lose sight of is finding out what happened during the campaign and in those (awkward, at a minimum) meetings between Trump and Comey.
Otherwise, we’re drifting away from finding out the truth of the situation – which may not be legally conclusive, but which ought to matter (indeed, it ought to be the most important thing) politically.
What, exactly, were the nature of the Trump campaign’s interactions with the Russian government before, during and after last November’s election?
The answer may have legal implications (especially if anyone lied about them), but it surely has political implications.
Ditto the nature and content of Trump’s interactions with Comey.
Whether the president told his then-FBI director “I hope you can let this go” (and, if so, whether that was a crime) the fact that he appears, according to Comey’s version of events, to have interfered with an ongoing investigation of advisers in his orbit should have political ramifications, no matter one’s reading of the relevant statutes.
There are two reasons the political implications are more important.
First, even if a particular action or statement is legal, that doesn’t automatically make it appropriate, wise or in keeping with the duties of the highest office in the land.
Second, and related, the ultimate remedy contemplated by the Constitution for malfeasance in office by a president is the very political, not legal, remedy of impeachment.
Ultimately, the Constitution leaves it to Congress, not the courts, to decide whether a president should be “removed from Office” for “Treason, Bribery, or other high Crimes and Misdemeanors.”
We’re certainly not there, but figuring out whether that’s where we’re headed is a better use of Americans’ time and patience than wrangling over which criminal laws match up with the increasingly serious political allegations against the president.
Steve Vladeck is a professor of law at the University of Texas, co-editor-in-chief of Just Security, and a CNN legal analyst.
