The Washington Post’s pitiful analysis of “obstruction”

“Comey lays out the case that Trump obstructed justice.” So declares the Washington Post in a front page “news” story about James Comey’s testimony.

The story, by Matt Zapotosky is based on shoddy legal analysis and held together by quotes from lawyers and professors of no great prominence. Zapotosky doesn’t bother to include the views of the many prominent legal analysts — Alan Dershowitz and Andy McCarthy to name just two — who perceive no case for obstruction of justice. Either Zapotosky didn’t see fit to seek this viewpoint or he saw fit not to include it in his utterly biased article.

Zapotosky writes:

There was evidence of possible intent: when the president cleared the room so he could ask Comey — without the attorney general or his son-in-law present — about the investigation into former national security adviser Michael Flynn’s contact s with Russian officials after the 2016 election.

There was the suggestion of quid pro quo: when Trump repeatedly raised the status of Comey’s job as he asked for loyalty.

And there was the consequence: when Comey, having not steered investigators away from Flynn, was fired by Trump in May, long before the end of his 10-year term.

Let’s examine these claims. “Clearing the room” isn’t evidence of intent to obstruct justice. President Trump might have cleared the room because he knew he was about to do something inappropriate but not illegal (that’s my view of what Trump did). He might have cleared the room because he knew he was about to do something that was neither illegal nor inappropriate, but that might nonetheless be embarrassing.

Clearing the room can only be evidence of intent to obstruct justice if what Trump did after the room emptied was an attempt to obstruct justice. So the whole “clearing the room” business begs the question.

Nor does Zapotosky come to grips, or even mention, the argument that it would not have been unlawful for Trump, having cleared the room, to order Comey to halt a portion, or the entirety, of the Flynn investigation. Comey himself testified:

[A]s a legal matter, the president is the head of the executive branch and could direct, in theory — we have important norms against this — [that] anyone be investigat[ed] or not. I think he has the legal authority. All of us ultimately report in the executive branch to the president.

(Emphasis added)

If Comey is right, then Zapotosky’s attempt at a three-step legal analysis is short-circuited at the outset.

As for the “quid pro quo,” Comey wants us to infer that Trump conditioned Comey’s retention as FBI director on “loyalty.” However, Trump retained Comey without having secured the loyalty pledge allegedly demanded (Trump apparently disputes that he asked for loyalty). Indeed, according to Comey, when he said he would give Trump honesty, Trump responded: “That’s what I want, honest loyalty.” Comey replied: “You will get honest loyalty from me.”

Thus, if there was a quid pro quo, it was retention in exchange for “honest loyalty.” Obstruction of justice cannot be inferred from this.

Moreover, even a general pledge of loyalty would not support an obstruction of justice claim. Such a pledge would not be a pledge to obstruct an investigation.

Finally, what about the firing of Comey after he didn’t “steer[] investigators away from Flynn”? First, there is no basis for assuming that the discharge was for not so “steering.” It’s clear that Trump discharged Comey because of dissatisfaction with Comey’s conduct relating to the investigation, but there is no evidence that he fired him out of dissatisfaction with the Flynn portion of it.

What was Trump dissatisfied about? His spokesman says the president didn’t like Comey’s “grandstanding” and “politicization” of the investigation. This has nothing to do with Flynn (as it must, if Zapotosky’s three-step theory of obstruction is to hold up). Comey’s testimony suggests that Trump was unhappy that the director wouldn’t publicly say the president isn’t under investigation. This too has nothing to do with Flynn.

Second, firing Comey for whatever reason wouldn’t be obstruction of justice, given that the firing was not intended to, and did not, end the investigation or let Flynn off the hook. Indeed, if Prof. Dershowitz and Comey (see his quoted testimony above) are right, the firing wouldn’t be obstruction of justice even if it had been intended to end the investigation or let Flynn off the hook.

If the Post is going to publish an article like Zapotosky’s it should (1) be labeled opinion (as it is in the internet version — where it appears, oddly, under “National Security” — but not in the paper) and (2) refrain from cherry-picking quotes from legal analysts on only one side of the issue.

However, the Washington Post has made itself part of the “resistance” to President Trump. It is unrealistic to expect fair and honest journalism from this rabidly anti-Trump organ.

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