Donald Trump is a man who craves respect, both from his peers in the form of praise and from his subordinates in the form of loyalty. Unfortunately, as a new report by the Brookings Institution explains, that need for loyalty and devotion may eventually be his undoing.
During the 2016 campaign, Trump stood out for his act as the brash, bombastic New York businessman who enjoyed straight-talk and boasted of his ability to get deals done. One of his key demands — as a real-estate tycoon, celebrity mogul, and presidential candidate — was unflinching, personal loyalty from his aides. (It’s a subject he even brought up when addressing the 2017 Boy Scout Jamboree. “A scout is trustworthy [and] loyal, he said. “We could use some more loyalty I will tell you that.”)
"I'm loyal to people who've done good work for me." #TheArtofTheDeal
— Donald J. Trump (@realDonaldTrump) April 24, 2012
But the Brookings report — authored by Barry H. Berke, Noah Bookbinder, and Norman L. Eisen — argues that same wheeler dealer attitude coupled with Trump’s demands for loyalty, which helped make him famous on The Apprentice, could also land him in the hot seat and lead to obstruction of justice charges down the road.
The report outlines the many ways in which Trump could find himself faced with such charges, due to his many alleged attempts to influence federal investigations into Russian interference in the 2016 election, as well as an investigation into former National Security Adviser Michael Flynn. Notably, the report explains, those charges do not hinge on whether or not the president was successful in his alleged attempts.
“Attempts to stop an investigation represent a common form of obstruction,” the report reads. “While those defending the president may claim that expressing a ‘hope’ that an investigation will end is too vague to constitute obstruction, we show that such language is sufficient to do so.”
The potential charges instead hinge on Trump’s interactions with former FBI Director James Comey in wake of his electoral victory, when the Bureau was looking into allegations of Russian interference and Flynn’s meetings with Russian officials.
Shortly before Trump was inaugurated, he called Comey and said “I hope you stay, you’re doing a great job.” Trump then followed up with a private dinner on January 27 where Trump reportedly told Comey, “I need loyalty. I expect loyalty.” A few weeks later, following Flynn’s resignation, Trump expressed hope to Comey that he, “could see [his] way clear to letting this go, to letting Flynn” off the hook.
“He is a good guy,” he said. “I hope you can let this go.” In the final conversation between Comey and Trump, the president reportedly said: “I have been very loyal to you, very loyal. We had that thing you know.”
Efforts to impede an investigation fall squarely within three U.S. Obstruction of Justice Statutes (18 U.S.C, Sections 1503, 1505 and 1512), all of which were drafted “with an eye to ‘the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted’”, the report explains. In other words, Trump didn’t need to directly ask Comey to drop his investigations to be breaking the law, and vague expressions of “hope”, and of coming to a mutual understanding, do not override his intent.
What’s more, the authors argue, it is essential to take into account the president’s position of power. “When a supervisor tells her direct report that she ‘hopes’ the employee finishes a task over the weekend…it is a directive,” the authors write. “Similarly when the president of the United States clears the room and tells the FBI director that he ‘hopes’ the director can ‘let go’ an investigation he has repeatedly disparaged…would appear to convey more than just the president’s idle fancies.”
Courts have repeatedly found the word “hope” does not excuse defendants from obstruction of justice charges. During the case of Jose Luis Bedoy, a corrupt Dallas Police detective, the court found that his statement to a prostitute of, “I’m just hoping that you haven’t told anyone anything…Like ya know, talking or anything like that”, was an attempt to impede an investigation into the officer’s corruption. In U.S. v.s McDonald, 1999, an obstruction of justice charge stuck when a defendant told his co-defendant “I hope and pray to God you did not say anything about a weapon when you were in Iowa.”
The theory Trump is obstructing justice by “hoping” charges get dropped is further reinforced by his continual demands for loyalty, as well as his allusions to a quid pro quo with Comey (“We had that thing you know”).
“Courts have held that statements emphasizing loyalty and urging it in return can constitute obstruction,” the paper reads. “Where a person suggests a benefit to someone for the purpose of impeding an investigation, or otherwise alludes to a quid pro quo relationship, it can be a contributing fact to determining whether conduct constitutes obstruction.”
Finally, the report states, it is important to reiterate two important afterthoughts. The first is that the obstruction charges don’t need to be well thought-out, successful, or occurring when criminal proceedings are actively underway. A simple “attempt” can be enough for a proceeding, or — in certain circumstances — for a “foreseeable grand jury or congressional investigation[s].”
Second, Comey’s interpretation of Trump’s remarks — and that he understood it as a “directive” — can also be used to kickstart proceedings, as even inference of threats or someone’s belief that another individual may be attempting to obstruct are considered to be enough evidence to move a case forward.
Obviously at the moment these charges are merely theoretical, and as the paper acknowledges, the “investigation is ongoing, and many facts are still to be determined.” However the extent of Trump’s boasts, veiled insinuations, and demands for loyalty could mean that he has inadvertently opened himself up to prosecution, or, at the very least, further trouble down the road.