Obstruction of Justice and the Unitary Executive

[Draggingtree]

Liberty Law

June 13, 2017|James Comey, Obstruction of Justice, the Flynn Investigation, The Unitary Executive

Obstruction of Justice and the Unitary Executive

by MIKE RAPPAPORT|2 Comments

There has been much talk about President Trump’s statement to James Comey that he hoped that Comey could let the issue of prosecuting Michael Flynn go.  Some people see in this statement an order that Comey not prosecute a criminal wrong, while others see merely a hope or request (but not an order) that Comey not prosecute.

Yet, it is not clear how much it matters whether it was an order.  Under a variety of circumstances, even an order to not prosecute Flynn might be entirely legal.

Many commentators have focused on the fact that the President seemed to be “interfering” in a criminal investigation by the FBI.  But that way of thinking about the matter seems problematic from an originalist and probably from a current law perspective as well.  Under both of these perspectives, a strong argument exists that the President is legitimately involved in decisions of this sort.

Let’s imagine that Director James Comey had concluded on his own that there was not enough evidence to continue an investigation into Flynn and had closed the investigation.  That would normally not be enough to lead to obstruction of justice.