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Thursday, May 18, 2017

Will Comey Go to Prison?

By now, everyone reading this post knows that there is supposed to be a memo that no one has seen (aside from possibly James Comey) in which the former FBI director records details of a meeting he had with President Trump the day after Trump fired general Flynn as National Security Advisor.  According to the NY Times, Comey wrote that Trump said the he hoped Comey could see his way clear to ending the Flynn investigation.  Trump then said that Flynn is a good man and Comey said he agreed.  We don't know what else, if anything, Comey wrote about the conversation.  We don't know what else, if anything Trump said.  We don't know the context of what was said.  Of course, for the Democrats, none of that matters; Trump was guilty of obstruction of justice.

The Democrats are wrong.  From a legal standpoint, it is not obstruction.  Comey works for Trump in the government structure, and such a statement by the President would not be obstruction as a result.  While the White House usually stays away from pending investigations, that is not a statutory requirement.  Think of Obama's interference with the Clinton investigation.  Obama announced in March of 2016, long before that investigation was over that Clinton had committed no crime because she did not "intend" to mishandle classified information.  That statement was not lost on Comey.  Even though lack of intent is no defense under the Espionage Act, Comey latched onto the Obama formulation and repeated it when he announced that Clinton would not be prosecuted.  Now THAT was interference.

But let's suppose that Comey thought President Trump was trying to interfere with the investigation and that such interference was obstruction of justice.  What did Comey have to do, if anything, at that point?  The answer is simple:  Comey had to report it. That's right; Comey had to tell the Attorney General of this supposed crime.  Failure to do so is a federal crime.  And, by the way, that report had to be made immediately, not three months later after Comey was fired.  We should also hasten to point out that even if Comey did not intend to keep the conversation secret by failing to report it, lack of intent is no defense.

So we have gotten to the point where Comey will surely tell us what seems rather obvious to me from the bits of the memo that have been reported, namely that he did not understand Trump to be trying to interfere with the investigation.  Rather, it sounds more like a wish from Trump to get the thing over. 


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