So far the most compelling evidence that President Donald Trump may have obstructed justice is that he admitted to firing FBI Director James Comey because he was unhappy with the investigation into his campaign’s ties to Russia.
“When I decided to do it I said to myself, I said, “You know, this Russia thing with Trump and Russia is a made-up story,” Trump told NBC’s Lester Holt. This contradicts Trump’s earlier claim that he fired Comey due to his mishandling of the Clinton email investigation.
Last week, both the New York Times and Washington Post broke stories that might implicate Vice President Mike Pence in a potential obstruction of justice case against Trump. Although the precise details are sketchy, we know that Trump initially authored a lengthy memo stating his real reason for firing Comey (that he wanted to shut the Russia investigation down).
That memo was later rejected by White House Counsel, Don McGahn. But the reports from the New York Times and Washington Post indicate that before it was rejected, Trump read the memo aloud to some of his closest advisers, including Pence. Which means Pence was very likely aware of Trump’s real motivations regarding the Comey decision. Yet on the following day Pence went before the public and affirmed Trump’s cover story for firing Comey.
I reached out to seven top legal experts and asked if Pence’s participation in Trump’s cover story makes him guilty of obstruction. There was not a clear consensus.
“If Pence gave any feedback in revising the letter to cover up those intentions and to give disingenuous legal reasons for firing Comey,” Jed Shugerman, a law professor at Fordham University, told me, “he is guilty of conspiracy to obstruct justice and aiding and abetting.”
Diane Marie Amann, who teaches law at the University of Georgia, is less convinced. “The likelihood that the vice president could face charges for crimes like obstruction of justice … based on what has been reported to date seems, at best, slim to none.” Part of the reason is that we simply don’t know enough about the contents of Trump’s original memo or what, exactly, Pence may have heard.
Obstruction of justice is also a notoriously difficult crime to prove. As Jessica Levinson, a law professor at Loyola Law school, told me, “It requires that one attempt to corruptly ‘influence, obstruct, or impede’ the ‘administration of justice.’” And it’s not clear that Pence’s knowledge of the draft memo or his statements the following day “rise to the requisite level.”
The seven legal experts’ full responses, edited for clarity and style, are below.
Asha Rangappa, associate dean, Yale Law School
The Eye of Sauron (a.k.a. Robert Mueller) has finally found Vice President Mike Pence. After months of flying under the radar of the scandals swirling around the White House, Pence, it turns out, was present in the Oval Office when President Trump read his initial draft letter firing Comey.
Until we know what the contents of that letter were or what the White House counsel Don McGahn advised Trump in the presence of Pence and others, we can’t conclude that Pence himself is exposed to any criminal liability — for that to happen, Pence would have had to be aware of criminal activity and to have agreed to either facilitate or conceal it, and there is evidence of neither so far.
However, given that he was in the “room where it happened,” Pence is certainly a valuable witness for Mueller in terms of understanding Trump’s thought process in the sequence leading up to Comey’s firing, and whether the rationale that was ultimately communicated to Comey for his termination was the real one.
“If Pence gave any feedback in revising the letter to cover up those intentions and to give disingenuous legal reasons for firing Comey, he is guilty of conspiracy to obstruct justice and aiding and abetting.”
—Jed Shugerman, Fordham University
Jessica Levinson, law professor, Loyola Law School
I frankly think it is highly doubtful that Vice President Mike Pence would be charged with any crime related to his knowledge of early drafts of a memo outlining President Trump’s reasons for firing James Comey and Pence’s later statements concerning the firing.
Obstruction of justice can be a difficult crime to prove. It requires that one attempt to corruptly “influence, obstruct, or impede” the “administration of justice.” I’m not sure that Pence’s knowledge of the draft of a memo in which Trump says he is going to fire Comey because of the Russia investigation and then his statements that the firing of Comey was unrelated to the Russia investigation rise to the requisite level.
The same goes for misprision [deliberate concealment] of a felony. This would require that another person (presumably Trump) committed and completed a felony, and that Pence knew that and took steps to conceal the felony. Put another way, a prosecutor would have to show that Trump completed a felony and Pence knew about that and covered it up. It could be difficult to demonstrate that Pence’s awareness of the first draft of the memo firing Comey and his later comments meet the elements of this crime.
Jed Shugerman, law professor, Fordham University
Under federal statute 18 U.S.C. 1512, “whoever corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so,” is guilty of obstruction of justice. As Trump more or less admitted several times, he fired Comey to impede the official proceedings (by the FBI, by Congress, and by a grand jury) in the Russia investigation. Now the question is who else is implicated.
As the New York Times reports, Pence was in the room where it happened. If, as reported, Trump read his draft letter to Pence, McGahn, and others, and if it that letter indeed was a “screed” about Comey’s handling of the Russia probe, then Pence and others had knowledge of Trump’s intentions. If Pence gave any feedback in revising the letter to cover up those intentions and to give disingenuous legal reasons for firing Comey, he is guilty of conspiracy to obstruct justice and aiding and abetting.
Even if he didn’t conspire, he may be guilty of misprision of a felony (18 U.S.C. § 4), the active concealment of a felony, because he participated and then lied the next day when he denied the Russia probe played a role. Public officials are held to a higher legal standard for disclosing fraud, abuse, and crimes than private individuals.
Others in the room may be implicated in obstruction, too, including Stephen Miller, Jared Kushner, Ivanka Trump, and White House counsel Don McGahn, who may not have attorney-client privilege over these matters.
“The likelihood that the vice president could face charges for crimes like obstruction of justice or misprision of felony based on what has been reported to date seems, at best, slim to none.”
—Diane Marie Amann, University of Georgia
Andy Wright, law professor, Savannah Law School
Reports that Vice President Pence was involved in the drafting of the initial Comey termination letter present significant political and legal problems for the Office of the Vice President. It is clear now from a number of sources — including President Trump’s own comments to Lester Holt — that Trump wanted Comey gone in order to shut down the Russia investigation’s potential cloud over the president.
If the president’s conduct amounts to obstruction of justice, Pence’s personal lawyers need to analyze legal liability for conspiracy (18 U.S.C. § 371), aiding and abetting (18 U.S.C. § 2), and, as argued by Jed Shugerman and others, misprision of a felony (18 U.S.C. § 4).
His exposure would turn on whether he agreed to assist with obstructive acts, whether he did assist them, and whether the president’s motivation constitutes corrupt intent. In a normal criminal trial, the question of corrupt intent would be a jury question.
More immediately problematic for Pence is the question of his candor. On May 10, Pence argued that the Russian investigation did not factor into the president’s decision to fire Comey. If the reports are true, that is a lie. It would also be evidence of assistance to the broader obstructive or coverup efforts. But these controversies will likely ultimately be resolved in the political/legal rather than purely legal arena.
In a former life, I was a lawyer for a sitting vice president. As an OVP (Office of the Vice President) lawyer, you must ensure compliance with applicable law, facilitate the VP’s effort to promote the administration’s broader agenda within the law, and — and this one is tricky — maintain the vice president’s viability as a successor to the presidency. The more Vice President Pence is involved in untoward, and perhaps illegal, conduct by the president or his aides, the less viable Pence-as-successor becomes.
Diane Marie Amann, law professor, University of Georgia
The likelihood that the vice president could face charges for crimes like obstruction of justice or misprision of felony based on what has been reported to date seems, at best, slim to none. This is so even assuming the accuracy of New York Times and Washington Post reports of the vice president’s attendance (or partial attendance — the Post says he “arrived late”) at an Oval Office discussion of a letter recounting the president’s voiced reasons for wanting to fire Comey.
Subsequently, Deputy Attorney General Rod Rosenstein drafted his own rationale for firing Comey, and after that, the vice president focused on Rosenstein’s memo as the basis for the president’s decision. But a reviewing of the vice president’s remarks to reporters reveals politicized phrasing (for example, he said the president acted “based solely and exclusively on his commitment to the best interests of the American people”) that is unlikely to meet a courtroom definition of wrongdoing.
This is especially the case when one considers the legal status of the imagined charges. Misprision of felony is a circa-1789 crime, which the first Congress borrowed from old English common law and which is not favored among many contemporary criminal law practitioners. (The few such convictions I saw in practice arose out of plea agreement — because the maximum sentence is three years, pleading to misprision avoided risk that a judge might impose a sentence higher than the lawyers deemed appropriate.)
Codified at 18 U.S.C. § 4, misprision applies only if someone knows of “the actual commission” of a crime but “does not as soon as possible make [that crime] known to some judge or other person in civil or military authority under the United States.” It seems to require far more than what has been reported, even assuming the reports’ accuracy. None of the statutes criminalizing obstruction of justice seems obviously and fully to apply, either.
Renato Mariotti, former federal prosecutor, 2007 to 2016
Based solely on what we know publicly, it’s a stretch to say that we’ve seen evidence that indicates Vice President Pence has significant criminal liability. The only serious discussion that I’ve seen so far centers on recent reports that he knew about a letter drafted by Stephen Miller on the president’s behalf, setting forth the president’s views regarding why he wanted to fire Comey.
What some have suggested is that the fact that Pence saw the letter and later told the press that the president followed the recommendations of the attorney general and deputy attorney general makes him guilty of actively concealing a crime, which is itself a crime called misprision of a felony. Misprision of a felony is rarely charged — I never charged it in my nine years as a federal prosecutor, and I don’t know of any prosecutors in my former office who charged that crime during my time there.
For Pence to be guilty of that crime, he would have to have known that a crime had been committed. Although Pence is a lawyer, obstructing a grand jury investigation by firing an FBI director is not the sort of thing that people automatically recognize as a crime. In fact, it’s a fact pattern that has never been charged as a crime before. Pence might not have understood the potential criminal implications until later.
In addition, typically courts require more than a single lie told to the media to prove active concealment. There was a case where a court held that telling half-truths to law enforcement wasn’t enough.
“The more Vice President Pence is involved in untoward, and perhaps illegal, conduct by the president or his aides, the less viable Pence-as-successor becomes.”
—Andy Wright, law professor, Savannah Law School
Joshua Dressler, law professor, Ohio State University
Reading a memo that arguably is evidence of an effort by others to obstruct justice does not make the person who read the memo guilty of the same offense. But, if one has knowledge of an effort to obstruct and assists in the obstruction even in the most trivial way, or acts in a way to try to hide the evidence of obstruction, then that person has crossed the thin line between knowledge of a crime and participation in it.
The laws of conspiracy and accomplice liability are remarkably broad. Prosecutors love these laws. They can be used to ensnare people who had a major or just a tangential connection to others’ criminal activity. It is plausible to argue that if Trump is guilty of obstruction of justice, and if that memo was a step in an effort to do so, then Pence is guilty as an accomplice or co-conspirator, along with others, in Trump’s alleged obstruction effort, if (but only if) Pence said or did anything, no matter how small, with the intent to assist.
Do I think that, based on what we know now, any serious prosecutor would charge Pence with involvement in any crimes that are proven? No, not based on what we know now. But there is now justification for requiring the vice president to explain himself to the criminal investigators.