In the frenzied days since Donald Trump fired James Comey, all the original justifications have been shredded. To quote Richard Nixon’s press secretary Ron Ziegler (the Sean Spicer of his day), they are now “inoperative.”
Trump’s defenders still hug tight to one argument. Like any president, they note, Trump has the legal right to dismiss the FBI director. Comey himself told the FBI staff, “I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.” Give him points for sportsmanship. And it’s true that the statute setting a ten year term says the president can remove the FBI chief—with no explicit requirement that it be “for cause,” as some other laws require.
Does that fact alone give Trump a free pass? As it turns out, emphatically, no. Donald Trump still could face of harsh legal jeopardy for firing Comey, depending on why he did it, and what else he did. Start with the law itself. It is simply not the case that something that’s legal under normal circumstances is always legal. I have a right to drive, but not to drive a getaway car. A business can have a policy of deleting all emails after thirty days. (Euphemistically known as “document retention.”) But if you begin to frantically shred documents after you get a subpoena, that’s different. Many things can become legal problems if they are designed to block an investigation.
The federal obstruction of justice statutes are notably expansive, as civil liberties advocates often warn. Section 1512 of Title 18 of the federal code makes it illegal when someone “obstructs, influences, or impedes any official proceeding, or attempts to do so.” That could bring a twenty year sentence. What matters most is motive. Cue the President to Lester Holt: “And in fact when I decided to just do it I said to myself, I said, “You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.” Sarah Huckabee Sanders blithely explained from the White House podium that the firing would hasten the end of the investigation. “We’d love for this to be completed. But we also want it to be completed with integrity.”
Now, in the unlikely event that Trump were to ever be hauled before a jury, he would no doubt say he had other motives. Professors have noted that Trump also called Comey a “showboat.” Making a case would be hard. But Trump keeps blurting out incriminating evidence. There are the thuggish tweets attacking Sally Yates as she prepared to testify. His bizarre, barely literate warning: “James Comey better hope that there are no "tapes" of our conversations before he starts leaking to the press!” And there is the now-infamous January dinner, which seems like a House of Cards outtake. That’s the chilling chat where Trump demanded “loyalty” and asked if he were under investigation, all while implicitly dangling the chance for Comey to keep his job. (Add “am I under investigation” to “are you pregnant” on the list of things not to ask in job interviews.)
Context matters, too. Trump was no bystander. These officials all worked for him. If a President can simply derail an investigation by firing the investigator, just because the probe was getting close to the White House, there’s not much left of the crimnal law.
Given all this, why do his lawyers let him confess his intention to obstruct justice on national television? Don’t discount the possibility that Trump and his team are just winging it.