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While Comey memo could be key, any Trump prosecution tricky

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A memo detailing President Donald Trump's request to shut down an FBI investigation of his ousted national security adviser is a powerful piece of evidence that could be used to build an obstruction of justice case against him.

But criminal charges of interfering with an investigation are difficult in ordinary circumstances, several former federal prosecutors cautioned Wednesday. And it's an open question whether a sitting president can even face criminal charges, or whether attempts to hold him accountable for wrongdoing can only proceed through impeachment.

The White House has denied fired FBI Director James Comey's account of a conversation he had with Trump in February, recorded in a memo seen by Comey associates. Still, to a prosecutor building an obstruction of justice case, the facts are compelling.

First, Comey says the president asked for his loyalty. Then he asked Comey to back off the FBI's investigation of former National Security Adviser Michael Flynn, according to Comey's memo. Then Trump fired Comey, declaring in a television interview that it was at least partly because he was bothered by the FBI's probe of potential coordination between Russia and his presidential campaign.

"I'm hard pressed to find a prosecutor who would just look at this and say, OK, just move along," said Jeff Cramer, a former federal prosecutor. "It's not a two-foot putt, but is it a viable prosecution? Sure. But not against a president."

Whether a sitting president can be indicted for a crime is a question that is not answered by either the Constitution or by Supreme Court cases, but many legal scholars believe impeachment is the only way to hold a president accountable for misconduct. Justice Department lawyers under presidents Richard Nixon and Bill Clinton also concluded a president can't be indicted because it would interfere with his constitutionally assigned duties.

Eric Freedman, a Hofstra University law professor, has long believed that a president can be prosecuted while in office. "It's a disputed constitutional issue. We know specifically that the framers argued about this," Freedman said. "They were undecided."

Even if possible, a criminal prosecution would have its hurdles. Obstruction of justice charges often come down to whether prosecutors can show a person "corruptly" intended to interfere with an investigation.

"Since we can't read people's minds, proving intent is very difficult," said Carole Rendon, who served as the chief federal prosecutor in Cleveland until March. And Trump could argue he was not corrupt in raising an issue of concern for Flynn, a longtime associate.

Proving Trump's mental state would be a tall task, but prosecutors could have some clues.

For one, he asked Vice President Mike Pence and Attorney General Jeff Sessions to leave the room before speaking privately with Comey about Flynn, according to a Comey associate. And in firing Comey, Trump claimed the FBI director told him three times he was not under investigation, which could be a sign that they were repeatedly having such conversations, said Daniel Petalas, a defense attorney who formerly worked in the Justice Department's Public Integrity Section.

"If he's pressuring repeatedly and won't take no for an answer, that becomes evidence of intent," Petalas said.

Comey's response could also be an indication.

"If in fact it's true that the FBI director immediately wrote a memo to the file, it indicates that he thought something was amiss," Rendon said.

The memo itself would be "significant evidence," because Comey has a "sterling reputation for truthfulness," said Paul Charlton, another former federal prosecutor. "I don't know that you could say the same about the president."

Both presidents who were subjected to impeachment proceedings, Clinton and Nixon, were accused of obstructing justice. Yet impeachment would not be without its own difficulties, Petalas said, because the House and Senate decide for themselves whether the standard is met.

It takes a majority of the House to impeach a president and a two-thirds vote of the Senate to remove him from office. Republicans control both houses, as well as the presidency.

Nixon resigned before the Democratic-led House could vote on impeachment and Clinton, while impeached by a House run by Republicans, survived a Senate trial.

In theory, prosecutors can pursue charges against a president after he leaves office. President Gerald Ford pardoned Nixon in 1974 to spare him and the country from having to re-live the Watergate scandal in a historic trial of a former president.

Days before he left office, Clinton reached a deal with independent counsel Robert Ray that spared Clinton possible indictment after leaving office. Clinton acknowledged that he had made false statements under oath about his relationship with White House intern Monica Lewinsky and surrendered his law license in Arkansas.

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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