On 10 October 2017, the nonpartisan Brookings Institution released a report concluding that evidence already in the public record strongly suggests President Donald Trump’s firing of former FBI Director James Comey was done with “improper intent”:
Our review of the facts and the law leads us to the view that the president likely obstructed justice. Should that conclusion be borne out, we believe he will be held to account under one or another of the vehicles we have outlined, for no one is above the law in our system. Accountability will have significant consequences for the functioning of our democracy. We offer this paper as a framework to evaluate the facts and the investigation as they develop, and to help prepare for the turbulence that may well lie ahead.
Authors Barry Berke, Noah Bookbinder, and Norman Eisen did say that Special Counsel Robert Mueller should be able to complete his current investigation into possible election interference by Russia before they could make any final determination about Trump’s actions thus far in his presidency.
Levin and Berke are currently acting as outside pro bono counsel to another organization, Citizens
for Responsibility and Ethics in Washington (CREW), which has sued Trump for allegedly violating the foreign emoluments clause of the United States Constitution. Bookbinder is the group’s executive director, and Eisen is its founder and co-chair.
Trump fired Comey on 9 May 2017, as Comey was leading his own investigation into the possibility of both Russian interference and links between that country and Trump’s presidential campaign. Comey subsequently testified before the Senate Intelligence Committee that the president had asked for a pledge of “loyalty” while having dinner and told him he hoped that Comey would abandon investigating the activities of former national security advisor Michael Flynn:
The true nature of President Trump’s relationship with Flynn remains murky. But even if President Trump was acting to obstruct the investigation into Flynn out of mere friendship, as opposed to something more explicitly nefarious like covering up Flynn’s contact with Russian agents, Trump could still be acting with an improper purpose.
The Brookings team wrote that legal precedent has established that even if Trump wanted to protect his friend in asking Comey not to probe Flynn’s possible ties, that kind of motivation would be sufficient to
establish “corrupt intent” The report also said that if Trump fired Mueller for similar reasons, it would mount to a “doubling-down” on the potential pattern that the president was obstructing justice:
The evidence that President Trump has acted with an improper motive and therefore criminal intent would be strengthened by a clear pattern of obstructive behavior similar to his treatment of Director Comey, including pretextual attacks on Mueller’s impartiality, where Mueller appears to be investigating individuals who are close to President Trump. Because it is now publicly known that Mueller has convened a grand jury to assist his investigation, firing Mueller would have a clear nexus to grand jury proceedings and quite foreseeably impact them.
Whether Trump could be impeached while in office, the report says, is unclear. The Office of Legal Counsel at the Justice Department has stated that a president can not be indicted during his term. But Watergate special prosecutor Leon Jaworski and Kenneth Starr, who investigated former President Bill Clinton in 1994 as an independent counsel, both argued to the contrary. According to the Brookings analysis:
In our view, subjecting the president to criminal prosecution will not necessarily incapacitate the executive branch. While we acknowledge there are special considerations that must impact any form of litigation involving the president, the possibility of a criminal case against President Trump is consistent with the Article III jurisdiction of federal courts and Supreme Court precedent.
Impeachment is, by political definition, a trial for a member of high office, such as a United States president. It refers to the process of charging an elected official with a crime, which may or may not result in removal from office.
Taylor, Jessica. “Comey Accuses White House Of ‘Lies, Plain And Simple’ About His Firing.”
NPR. 8 June 2017.
Citizens for Responsibility and Ethics in Washington. “CREW Sues Trump Over Emoluments.”
23 January 2017.
Berke, Barry et al. “Presidential Obstruction of Justice: The Case of Donald J. Trump.”
The Brookings Institution. 10 October 2017.