Andrew C. McCarthy is a former federal prosecutor and a contributing editor at National Review.
James B. Comey’s testimony Thursday before the Senate Intelligence Committee will no doubt embolden those who believe we already know enough to conclude that President Trump obstructed justice by leaning on the then-FBI director to halt a criminal investigation of Michael Flynn. But nothing that Comey said alters the fact that this claim remains fatally flawed in two critical respects: It overlooks both a requirement for corrupt intent and the principle of executive discretion.
It is true that federal statutes criminalizing obstruction of the administration of law — including by agencies such as the FBI — cite not only actual interference with an investigation but attempts to do so as well. That is, the fact that the investigation of Flynn, a close Trump campaign adviser who would briefly serve as his national security adviser, was never actually shut down cuts against the case for obstruction, but it is not dispositive.But the arguments for presidential obstruction here tend to omit the statute’s most important word: “corruptly.” Not every form of interfering with an investigation, or even the closing down of an investigation, is felony obstruction. Only corrupt ones. Prosecutors must prove beyond a reasonable doubt that the accused not only acted intentionally but also with an awareness that his actions violated the law.The usual examples are straightforward: A public official is paid off to lean on the police to drop a case. Or an official acts to halt an investigation out of fear that a suspect will reveal wrongdoing by the official.
So, what would be a legitimate interference with an investigation?
This brings us to executive discretion. Every day, in FBI and U.S. attorney’s offices throughout the nation, agents and prosecutors decide to close investigations and decline prosecutions. Many of these cases are viable, but these executive-branch officials judge that the equities weigh against continuing the investigation or filing an indictment. They consider the seriousness of the offense and balance that against personal factors related to the suspect — criminal history, contributions to society, whether alternatives to criminal prosecution would be more appropriate, whether a criminal charge would be overkill because of other consequences the suspect has suffered, etc.
This is important because the president is the chief executive. We like to think of law enforcement as insulated from politics, and we certainly aspire to a politics that does not undermine the rule of law. In our system, however, it is simply not the case that law enforcement is independent of political leadership. The FBI and Justice Department are not a separate branch of government. They are subordinate to the president. In fact, they do not exercise their own power; the Constitution vests all executive power in the president. Prosecutors and FBI agents are delegates.
That means that when they exercise prosecutorial discretion, they are exercising the president’s power. Obviously, the president cannot have less authority to exercise his power than his subordinates do.
