The president’s lawyer, former New York City Mayor Rudy Giuliani, appeared on CNN Sunday morning in what has become a weekend tradition — the former mayor goes on national television and demonstrates that maybe “lawyer to the president” isn’t the best job for him.
In this week’s edition of The Rudy Show, Giuliani denied ever saying that Donald Trump asked then-FBI Director James Comey to give a former top aide “a break.”
A few minutes later, CNN host Jake Tapper played video of Giuliani telling ABC News that Trump asked Comey to give former National Security Adviser Michael Flynn “a break.”
Giuliani also offered an idiosyncratic explanation of what constitutes obstruction of justice under federal law, claiming that Trump did not commit a crime even if he did tell Comey to “go easy” on Flynn (Flynn pleaded guilty to lying to the FBI regarding conversations with the Russian ambassador last December).
“The statement ‘go easy on him’ is hardly an obstruction,” Giuliani claimed. “Obstruction involves a threat, obstruction involves a false testimony, obstruction involves an offer of money — has to be corrupt.“
Giuliani is correct that threats, false testimony, and bribes can all form the basis for an obstruction prosecution, but this is hardly an exhaustive list. For one thing, there is no one federal law prohibiting a singular crime known as “obstruction.” To the contrary, federal law forbids a wide range of activities — threatening or harassing witnesses; bribing jurors, federal officials, or witnesses; lying to federal investigators or under oath; and kidnapping the family members of a federal judge, just to name of few — which can all be lumped under the broad heading “obstruction of justice.”
One of the broadest of these obstruction laws provides that “whoever corruptly…influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States” faces a fine and up to 5 years in prison. If Trump is prosecuted for pressuring (and later firing) Comey, this statute is likely to form the basis for that prosecution.
The word “corruptly” in this context, is defined broadly to include any action taken with “an improper purpose.”
So Giuliani is wrong that prosecutors must show that Trump made an explicit threat, engaged in bribery, or committed some other similar offense in order to prove obstruction. Merely acting with an “improper purpose” to influence an ongoing agency investigation may constitute obstruction of justice.
In fairness, there is some uncertainty in the law which a better attorney could raise on Trump’s behalf. The particular fact pattern at issue in this case — a sitting president pressures the head of a law enforcement agency to go easy on a former top aide, then fires that agency head shortly thereafter — isn’t exactly a common occurrence in American history, so there is no case law stating clearly that the words “improper purpose” apply specifically to Trump’s conduct.
At least one of Trump’s defenders in the legal academy, moreover, claims that the law banning attempts to influence a “pending proceeding” does not apply to FBI investigations. At least one federal appeals court disagrees, however. The United States Court of Appeals for the Sixth Circuit held that the word “proceeding” is “of broad scope, encompassing both the investigative and adjudicative functions of a department or agency.”
Trump also could have a built-in advantage if he is prosecuted because he’s selected so many federal judges during his time as president. Judge Brett Kavanaugh, Trump’s nominee to the Supreme Court, believes that presidents should have broad immunity from legal proceedings while they are in office.
But Giuliani did not dive into any of this nuance concerning obstruction prosecutions. He simply made a misleading statement about what the law says. Trump does not need to engage in bribery, threats, or similar conduct to face prosecution. His treatment of James Comey may be enough.