Jacquelyn Martin/AP

The Incompetence Defense

Republican senators suggest Trump is innocent because he didn’t try very hard to obstruct justice, or because he was bad at it.

During former FBI Director James Comey’s dramatic testimony before the Senate on Thursday, Republican senators settled on a pair of strange arguments for why President Trump hadn’t obstructed justice: He didn’t try very hard, or he was really bad at it.  

Comey testified that the president asked Comey to shut down the FBI investigation into former National-Security Adviser Michael Flynn, who was ousted after lying about his contact with Russian officials, saying, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” Comey testified that he took that statement as “direction.” Republicans weren’t convinced.  

“Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where they said or thought they hoped for an outcome?” Idaho Republican Jim Risch asked. Comey said he did not, but New York Times legal reporter Adam Liptak quickly found one such example.  

Senator James Lankford of Oklahoma took a similar tack. “If this seems to be something the president is trying to get you to drop it,” Lankford said, “it seems like a light touch to drop it, to bring it up at that point, the day after he had just fired Flynn, to come back here and say, I hope we can let this go, then it never reappears again.”

Texas Senator John Cornyn, the number two Republican in the Senate, suggested that firing Comey after not shutting down the Flynn investigation proved Trump wasn’t trying to shut it down. “As a general proposition, if you're trying to make an investigation go away, is firing an FBI director a good way to make that happen?” Cornyn asked Comey, who replied that “It doesn't make a lot of sense to me but I'm hopelessly biased given that I was the one fired.”

David Gomez, a senior fellow at George Washington University’s Center for Cyber and Homeland Security and a former FBI agent, said he didn’t find that line of argument persuasive. “I failed to follow Cornyn’s logic. Especially given the public reasons for the firing,” Gomez said. “Firing the man in charge of the FBI—and replacing him with your own man—is exactly what I would expect if you were trying to impede an FBI investigation.”

On the surface, the argument for exculpatory ineptitude may seem absurd; if you try to rob a bank, and you slip on a banana peel and knock yourself out, you have still attempted to rob a bank. But the argument that Trump simply didn’t try hard enough to shut down the Flynn investigation is exactly the argument that a defense attorney might make if they were defending a client against an accusation of obstruction of justice, because it attacks the idea that there’s sufficient evidence to support the charge.

“If an actor has corrupt intent, any act intended to obstruct justice is enough, whether or not it succeeds,” said Bruce Green, a former associate counsel in the Iran-Contra affair and a law professor at Fordham. “But the Senators' point here may be that you can't infer from President Trump's acts that he was trying to derail the investigation, because if he really wanted to do so, he could have done so more effectively.”

That question of intent is ultimately more important than whether or not Trump got what he wanted. "The obstruction crimes are crimes of attempt, not of result," said John Q. Barrett, a former associate counsel in the Iran-Contra case and a law professor at St. John’s. "It's worse certainly if obstruction of justice succeeds, but frankly those are the ones we don't learn about and don't get prosecuted."

To that point, Trump’s decision to ask everyone to leave the room before he broached the subject of the Flynn investigation with Comey may ultimately be crucial.

“Often in conducting a criminal investigation, the hardest thing to demonstrate is intent," said Mike German, a fellow at the Brennan Center for Justice and a former FBI agent."Asking people to leave the room before you have a conversation is an indication that someone has a bad intent in what they're doing and don't want witnesses."

Risch’s focus on Trump’s phrasing, that Trump “hoped” Comey would not prosecute Flynn, doesn’t leave Trump in the clear. "A light touch or a one time request, or a non-raised voice suggestion, could well be sufficient endeavor to constitute the crime," said Barrett.  

Barrett pointed out that the “smoking gun tape,” the recording that prompted Richard Nixon’s resignation, was a one-time request. On that tape, Nixon was heard hatching a scheme to get a CIA official to suggest to the FBI that that the break-in to the Democratic headquarters at the Watergate Hotel in Washington, D.C., was an Agency operation, so that the FBI would abandon its investigation.The break-in had actually been carried out by Nixon-affiliated political operatives.  

“When you get in these people when you … get these people in, say: ‘Look, the problem is that this will open the whole, the whole Bay of Pigs thing, and the President just feels that’ ah, without going into the details,” Nixon is heard saying. “Don’t, don’t lie to them to the extent to say there is no involvement, but just say this is sort of a comedy of errors, bizarre, without getting into it.” Nixon resigned on August 8, 1974, three days after the tape was released.

“One fleeting suggestion, and that's the whole ballgame politically, for Nixon,” said Barrett. "That was impeachable obstruction of justice in one statement."

Politically is the key word here. Even if Trump’s actions amount to obstruction of justice, it’s not clear a sitting president can be prosecuted—the only remedy might be impeachment, which Nixon resigned rather than face. As long as Republicans control both houses of Congress, that’s an unlikely outcome.

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