What exactly is obstruction of justice? And has President Trump engaged in it, by reportedly telling FBI Director James Comey that he hoped Comey would “let go” of the bureau’s investigation of Trump’s National Security Adviser Michael Flynn, and then firing Comey months later?
The answer to the first question is: Criminal obstruction of justice is broadly defined, and according to 18 U.S. Code § 1503, includes “any threatening letter or communication [which] influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”
The Criminal Resource Manual for U.S. Attorneys points out that “the Supreme Court has concluded that ‘endeavor’ is broader than ‘attempt’” — and quotes the court stating that in the statute it means “any effort or essay to accomplish the evil purpose that the section was enacted to prevent.” Therefore, says the Justice Department, “it follows that an endeavor to obstruct justice need not be successful to be criminal.”
But the answer to the second question is this: Trump may or may not have engaged in obstruction of justice under normal judicial standards, but that’s irrelevant — the only thing that matters is whether Congress decides he did so under whatever standards they believe are appropriate.
It’s nearly certain that presidents can’t be prosecuted under criminal law while in office. No one’s ever made a serious attempt to do so, and while no court has ever ruled on whether it’s possible, a 2000 analysis by the Department of Justice agreed with the department’s 1973 examination of the same issue that “a sitting President is constitutionally immune from indictment and criminal prosecution.” (The author of the 2000 memo, Randolph D. Moss, went on to be appointed by President Obama to the U.S. District Court for the District of Columbia.)
There is, however, a remedy for presidential misconduct, provided by Article II, Section 4 of the Constitution: impeachment and removal from office.
According to Section 4, any civil officer of the United States — which of course includes the president — can be removed from their position for “Treason, Bribery, or other high Crimes and Misdemeanors.”