On Monday, Bloomberg revealed that President Trump spent at least one full night in Moscow during the Miss Universe pageant in 2013. While Trump’s travel schedule might be unremarkable in most circumstances, his flight plans directly conflict with statements he reportedly made to former FBI Director James Comey. To any prosecutors investigating possible obstruction of justice allegations, this data would seem to provide further evidence of possible “corrupt intent”—the linchpin of any obstruction prosecution—in Trump’s dealings with the Russia investigation.
For months, Trump’s defenders have pressed a public relations campaign aimed at promoting the idea that a president could not obstruct justice. They argue that as the chief executive, the president is essentially the chief law enforcement official. In this role, any actions he takes regarding an investigation would be considered official acts: They may direct the investigation, but they cannot technically be considered to obstruct it. That has always been wrong.
One way to understand how official actions can be criminal violations is to look at bribery law. Bribery convictions hinge on proving the corruption of public servants who engage in official acts that they have the power to take but who do so with a corrupt purpose. Official duties shed their harmless nature when they are undertaken for such corrupt purposes. In these cases, judges instruct juries that they can conclude that an act is corrupt if it is “motivated by a hope or expectation of either financial gain or other benefit to one’s self.”
Obstruction of justice cases against public officials operate in the same way, turning on the defendant’s intent. However, whereas juries can infer an official’s corrupt intent in bribery cases by looking at his or her illicit benefit, proof of obstruction of justice is much more nebulous, depending on whether a defendant acted “with an evil or wicked purpose.” While proving an “evil or wicked purpose” is not the clearest standard, courts have provided one helpful guide: dishonesty. Most jury instructions make clear that a defendant acts “corruptly” if he or she acts “knowingly and dishonestly.”
Under this theory, DOJ prosecutors have convicted police officers from East Haven, Connecticut for obstruction of justice in the falsification of police reports. They also nabbed a captain and two deputies in Decatur County, Georgia for the same conduct on the same theory. And they convicted a member of the Detroit Police Department’s aviation section for falsifying his flight logs. In each of these cases, the corrupt intent of the action was shown by its dishonesty.
To date, the potential obstruction case against Donald Trump has offered some such evidence, but not necessarily enough. The obstruction allegations have focused on two things—the Michael Flynn investigation and Comey’s firing. Comey may believe that the president was attempting to obstruct justice when he allegedly asked him to let Flynn “go,” but proving that to a jury is not easy. Trump, for his part, has denied that he ever said this to Comey. If you believe that Trump is lying and Comey is telling the truth here, that might be evidence of corrupt intent. There’s further possible evidence of deception by Trump in this episode, as well. In an interview with the New York Times, Trump said he never cleared the Oval Office before this disputed conversation with Comey. The fact that he did clear the room could be testified to by others who were there—and by itself could help prove a corrupt intent. The fact that he has apparently lied about that would offer further proof of corrupt intent.
But the corrupt intent evidence was never as clear for the Russian investigation itself. Although the president stated that the Russia investigation was on his mind when he fired Comey, he claimed that was because the investigation was based on a “made up story,” not because he was trying to keep it from revealing the truth. The guilty pleas special counsel Robert Mueller has secured against Trump’s associates are all tangential to this discrete issue and, thus, virtually worthless for purposes of proving obstruction. (Unless, of course, the defendants have additional non-public information, which is always a possibility.) While Trump’s explanation may seem far-fetched, if it were true, it wouldn’t be obstruction and there is currently nothing to disprove it. Without a witness or documents to explain the president’s thinking, no prosecutor is going to get “beyond a reasonable doubt“ with this evidence.
The recently released Comey memos and Donald Trump’s flight records might change the game. According to the memos, On Jan. 6, 2017, Comey informed then–President-elect Trump about allegations that the Russians had a 2013 recording of him with prostitutes. Comey explained that it was the FBI’s job to try to understand what the Russians were doing and to ensure that the Russians do not try to coerce the president. Then, on Jan. 28, 2017, Trump allegedly raised the allegations again with Comey during a private dinner. According to Comey’s memo:
He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay [overnight] in Russia for that. He said he arrived in the morning, did events, then showered and dressed for the pageant at the hotel (he didn’t say the hotel’s name) and left for the pageant. Afterwards, he returned only to get his things because they departed for New York by plane that same night.
Trump reportedly reiterated the claim in a Feb. 8 meeting with Comey, this time in front of then–Chief of Staff Reince Priebus:
He […] explained, as he did at our dinner, that he hadn’t stayed overnight in Russia during the Miss Universe trip.
The flight records directly contradict these statements, providing the first direct evidence of Trump’s concealment of facts from investigators and, thus, real evidence of his corrupt intent.
As Bloomberg reported:
The Bombardier jet [Trump was travelling on] landed in Moscow on Friday, Nov. 8, at a time unspecified in the records.
He had a day full of public events that Friday, and the Miss Universe pageant wasn’t until Saturday evening. From Bloomberg:
[T]he flight records support a narrow slice of what Trump told Comey: On the night of the pageant itself, the plane Trump was said to be using didn’t fully overnight in Russia. [The] Bombardier took off from Vnukovo airport at 3:58 a.m. Moscow time, the records show.
Importantly, Trump’s misleading statements about his stay in Moscow predate his alleged request to Comey to let Michael Flynn go. Establishing that Trump was corruptly trying to mislead the investigation from the outset makes his subsequent statements about Flynn and his firing of Comey appear more nefarious. Under these circumstances, prosecutors could also call the various witnesses who have heard Trump contemplate firing Deputy Attorney General Rod Rosenstein, Mueller, and Attorney General Jeff Sessions to drive home his desire to close the investigation at all costs and for corrupt purposes.
On Sunday, Trump addressed the obstruction allegations in a tweet that quoted a Wall Street Journal writer who said this case “would be one of the weakest obstruction cases ever brought.” Based only on what the public knows, that is a lot less true today. Obstruction cases are won or lost on evidence of intent. Trump’s false claims to Comey provide just that.