The latest news surrounding Donald Trump has some persons calling for impeachment, removal or resignation of Trump as president. In a memo made by then FBI Director James Comey, Trump allegedly asked Comey if he would end the investigation of former National Security Advisor Michael Flynn. It was allegedly made the day after Flynn resigned. Comey declined. The issue is whether this request, if proven to be true, should be considered obstruction of justice and if so, what remedies exist.
Obstruction of justice is a federal statute that makes it unlawful to corruptly obstruct, influence or impede an official proceeding. There are several key elements to proving the crime. First, there must be an intent on the part of the person to specifically obstruct, influence or impede. The party must be aware that an investigation or proceeding exists. And the action must be one that attempts to obstruct, influence or impede. In looking at the totality of the circumstances surrounding what is being alleged by former FBI Director James Comey, it appears that all criteria have been met.
The memo of Comey does not stand alone in a vacuum. Putting together the pieces of the puzzle is an easy one. First, there was a dinner meeting at the White House where Comey asserts that Trump allegedly asked him to pledge his loyalty to the President. According to Comey, he declined to pledge his allegiance to Trump. Now there’s the Comey memo asserting that Trump asked Comey to drop the investigation against Michael Flynn. Comey continued with the investigation. And of course, Comey was fired by Trump. If a sitting president, having the power to end one’s career or position makes the request that Trump allegedly made, it would indicate that all criteria of the federal obstruction of justice statute have been met. But that doesn’t end the matter.
Donald Trump is the sitting president of the U.S. with certain protections against criminal prosecution. The Supreme Court has not ruled whether a sitting president can be charged with a federal crime in lieu of impeachment. If any other politician had done the alleged actions, he or she would likely be facing a criminal indictment by a Grand Jury shortly. But the President of the United States’ removal is based on impeachment or use of the 25th amendment under the Constitution.
Impeachment proceedings, as were done in the case of former President Bill Clinton, must be started with a majority of the House and then a full trial in the Senate with 2/3 members of the Senate in support. With the GOP controlled House and Senate, impeachment is an option but a political one. And unfortunately, it’s still too soon to know if enough Republican law makers will pull the plug on their President. My mother used to have a saying that if you make your bed hard, you must lay in it. And Republicans may still prefer to lay in their bed with Trump, instead of formal impeachment charges.
The other method to oust a sitting president is found in Section 4 of the 25th amendment of the U. S. Constitution which states that a president may be removed if he or she is found unable to serve or to discharge one’s duties. This option has never been used and likely won’t be used in Trump’s case—under our present circumstances. And it requires a 2/3 majority in the House and Senate to permanently remove a president.
We have likely only hit the tip of the iceberg here. And that’s where an independent commission or special prosecutor is needed. At this point with Trump potentially asking officials to end investigations, we need a special prosecutor who can dig deep without fear of reprisal, recusal or removal.
And speaking of removal, the last method might be the president’s resignation. That would require many Republican leaders to convince Trump that he can’t continue to serve. Whichever method is considered, it won’t be an easy or quick fix. Speaker Paul Ryan states he still has “confidence” in Trump, despite the newest allegations. I suspect some Republicans are likely going through the five stages of grieving which are denial, anger, depression, bargaining and acceptance.
One thing is for sure. More Republicans will be getting out of bed with Trump and saying enough is enough.
Debbie Hines appears on WUSA 9 with Bruce Johnson on May 17, 2017 to discuss Trump, Comey and special prosecutor:
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.