In the aftermath of former FBI Director James Comey's testimony before the Senate Intelligence Committee on Wednesday, critics of President Donald Trump have argued that his interactions with Comey constitute obstruction of justice.
Specifically, critics have pointed to several statements Comey has said Trump made, including a request to end his investigation into Michael Flynn, the former national security advisor.
"I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go," Trump said during a one-on-one meeting in the Oval Office in February, according to Comey's prepared testimony.
Comey added on Thursday that he understood Trump's comments to be an order.
"I mean, this is a president of the United States with me alone saying, 'I hope this.' I took it as, this is what he wants me to do. I didn't obey that, but that's the way I took it," Comey said.
The notion that Trump's comments to Comey constitute obstruction of justice has been vehemently rejected by Trump's supporters. Republican Senator Jim Risch of Idaho argued during Comey's testimony that there is no legal basis to charge Trump for the comments Comey accused him of making.
"You may have taken it as a direction, but that's not what he said," Risch responded. "He said, 'I hope' … You don't know of anyone ever being charged for hoping something — is that a fair statement?" To which Comey replied he didn't.
But New York Times reporter Adam Liptak shared on Twitter an instance of a statement beginning with "I hope" being used by the Eight Circuit Court of Appeals in 2008 to form part of the basis for a sentence enhancement for obstructing justice.
"I hope and pray to God you did not say anything about a weapon when you were in Iowa. Because it will make it worse on me and you even if they promised not to prosecute you," a defendant wrote to his girlfriend, who was a potential witness.
The defendant in the case, Collin McDonald, had pleaded guilty to one count of bank robbery — during which he carried a concealed knife, according to his girlfriend's testimony — and was sentenced by a lower court to 175 months in prison, to be served consecutively to previous sentences he had been given by different courts.
The case reached the Eighth Circuit when McDonald challenged the consecutive sentences, arguing that the lower court should not have imposed a sentence enhancement due to his attempts to obstruct justice, in addition to several other charges.
McDonald argued that the obstruction of justice enhancement should not be imposed because his girlfriend's testimony was not credible. The Eighth Circuit held that the girlfriend's testimony had been "totally believable," and therefore the sentence enhancement warranted.
USA v. Collin McDonald is not an exact comparison to the situation with Trump and Comey — the Eighth Circuit's decision concerned sentencing minutiae for a convicted bank robber rather than an indictment against the president. Yet the case nevertheless sheds some light on how courts view statements that are perceived to be threatening.
"We have examples all the time in criminal law of people saying things only slightly subtly, where everyone understands what is meant — 'Nice pair of legs you got there; shame if something happened to them,'" Samuel Buell, a Duke University law professor and former federal prosecutor, told the Times.
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