The President’s Power to End a Criminal Investigation

Andrew C. McCarthy:

According to a portion of a memorandum the New York Times has reported on but not seen, President Trump told then–FBI director James Comey, “I hope you can see your way clear to letting this go, to letting Flynn go” — an apparent reference to the FBI’s criminal investigation of retired general Michael Flynn, Trump’s former national-security adviser. The president is said to have made this remark in a private meeting with Comey at the White House on February 14 — the day after Flynn resigned under pressure.

The Times report has the predominantly anti-Trump media in whirling-dervish mode, leaping to the conclusion that the president is guilty of obstructing justice. As I’ve countered, this is not just premature, it is wrong.

The president has denied appealing to Comey on Flynn’s behalf. Trump denials have a way of, um, evolving, but even if we assume that this snippet of conversation happened just as the Times alleges, there would be no prosecutable obstruction case. On its face, the statement is an expression of hope; it does not amount to a corrupt undermining of the truth-seeking function of an FBI investigation. Comey, a highly experienced former prosecutor and investigator, knows the law of obstruction cold. He clearly did not perceive himself to have been impeded — he neither resigned nor reported a crime up or down his chain of command. In Senate testimony on May 3 — i.e., nearly three months after the St. Valentine’s Day chat with Trump — Comey averred that never in his experience had the FBI been instructed to drop an investigation for political reasons. Trump, ever his own worst enemy, has stirred the pot with the timing and conflicting explanations of his May 9 firing of Comey, but a president does not need a reason to fire an FBI director. Trump’s rationale may have had both worthy and unworthy elements, but the decision was his to make, and even ardent Russia-conspiracy theorists are apt to doubt that he did it over Flynn. More to the point, neither Trump’s alleged remark nor Comey’s firing has had any apparent effect on the Flynn investigation, which has continued (a grand jury in Virginia has issued subpoenas).

So, what we currently know falls woefully short of a prosecutable obstruction offense, even if we stipulate that Trump created a situation that was awkward and inappropriate.

But should we so stipulate?

I ask because I have been highlighting the fact that, on its face, Trump’s statement was not an order that the Flynn investigation be closed. Yet, to assert this fact is to raise an important question: If Trump had ordered Comey to close the investigation, would that have amounted to obstruction of justice?

To hear Democrats and other Trump detractors tell it, there are only two possible answers: “Of course” and “How could you ask such a stupid question?” In reality, it is not so cut and dried.

In our constitutional system, police powers are executive powers. They may not be wielded by any other branch of the federal government. This is why, to take a topical example, Robert Mueller, the newly appointed “special counsel” who has taken over the so-called Russia investigation (which includes the Flynn probe), is not an “independent counsel” — he answers to the president and reports to Justice Department leadership.

‘The independence of law enforcement’ goes only so far. The president is the chief executive of the federal government, and the Constitution vests all executive power in him.

It is a commonplace to laud “the independence of law enforcement,” but the truth is that independence goes only so far. The president is the chief executive of the federal government, and the Constitution vests all executive power in him. Everyone else who works in the executive branch is a subordinate, delegated to exercise the president’s power at the president’s pleasure. (The sole exception is the vice president — but let’s not get sidetracked.) The president is the superior of the attorney general, who in turn is the superior of the FBI director — the FBI is a component of the Justice Department.

In sum, the FBI director works for and answers to the president. Yes, we want our law enforcement to be as independent as practicable. To have the rule of law, on which a free society depends, the public must be convinced that the justice system’s results are legitimate. Our law-enforcement officials therefore strive for independence in order to demonstrate that their decisions are fair and just, not driven by political considerations. But this aspiration is not an absolute. The FBI director is not an independent actor. The president is in charge, and must, for example, set enforcement priorities that the FBI is obliged to follow. A prudent president will not interfere in law-enforcement decisions. But that is because doing so would be counterproductive and politically damaging. It would not be unlawful.

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