My academic and political colleagues who insist that President Trump has obstructed justice point to his allegedly “corrupt motive” in firing former FBI Director James Comey after telling him that he “hoped” he would end his investigation of General Michael Flynn. They concede – as Comey himself did – that the President has the constitutional authority to fire the director and to order him to end (or start) any investigation, just as he has the authority to pardon anyone being investigated. But they argue that these constitutionally authorized innocent acts become criminal if the President was “corruptly motivated.”
This is a dangerous argument that no civil libertarian should be pressing. Nor would they be pressing it if the shoe were on the other foot. If Hillary Clinton had been elected and Republicans were investigating her for asking the Attorney General to describe the investigation of her as a “matter” rather than a “case,” my colleagues would be arguing against an expansive view of existing criminal statutes, as they did when Republicans were demanding that she be locked up for espionage. The same would be true if Bill Clinton or former Attorney General Loretta Lynch were being investigated for his visit to her when she was investigating his wife’s misuse of email servers.
“Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse – and more dangerous to liberty – when used in the context of political disagreements. In commercial cases where corrupt intent may be an element, the act itself is generally not constitutionally protected. It often involves a grey area financial transaction. But in political cases – especially those not involving money – the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criterion for turning a constitutionally authorized political act into a felony.
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