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Law Professor Outlines Legal Questions Raised In Comey Testimony

AUDIE CORNISH, HOST:

A major question going into today's Senate hearing with former FBI Director James Comey was this. Did President Trump try to interfere in the investigation into his former national security adviser, Michael Flynn, and Russian meddling into the presidential election? Comey told senators that President Trump took him aside in an Oval Office meeting and said, quote, "I hope you can see your way clear to letting this go," to letting Flynn go. Idaho Republican James Risch asked him to interpret that.

(SOUNDBITE OF ARCHIVED RECORDING)

JAMES COMEY: I took it as, this is what he wants me to do.

JAMES RISCH: You...

COMEY: Now, I didn't obey that, but that's the way I took it.

RISCH: You may have taken it as a direction, but that's not what he said.

COMEY: Correct. I - that's why...

RISCH: He said, I hope.

COMEY: Those are exact words, correct.

RISCH: OK. You don't know of anyone that's ever been charged for hoping something. Is that a fair statement?

COMEY: I don't as I sit here.

CORNISH: Now, that's the former FBI director and Senator James Risch talking about the implications of the word hope. Now, to understand the significance of this, we turn to Noah Feldman. He's a Harvard Law professor and columnist for Bloomberg View. Welcome to the program.

NOAH FELDMAN: Thank you.

CORNISH: So what does the word hope have to do with our understanding about whether or not there was a potential attempt to actually obstruct this investigation? Why focus on that?

FELDMAN: With respect to impeachment, I don't think it matters so much whether the president said do it or the president said, I hope it gets done. Either way, that would constitute obstruction of the kind sufficient to get a president impeached if Congress wanted to go about doing it. Criminally, however, it's a bit trickier.

The president of course has the authority to stop any investigation he wants. He can simply issue an order saying that they have to stop. So the question therefore at issue is whether by saying I hope the president meant to say stop it or whether the president meant to say, gee, wouldn't that it great, and perhaps in exchange for something, you would do this. So they're debating whether there's grounds for criminal charges with respect to obstruction of justice, which is a very delicate and unclear question.

CORNISH: Right. There's a difference between acting appropriately and behavior that rises to the level of criminal intent or, separately, impeachable offense. What are the distinctions people need to understand there?

FELDMAN: There is unethical behavior which you and I would say is wrong. And I think it's pretty obvious that the president trying to block an FBI investigation is ethically wrong. Then there's something that could be treated as a high crime or a misdemeanor under the constitution, which would get you deserving of being impeached. That's actually a lower standard than a crime that's on the statute books because you don't have to prove it beyond a reasonable doubt, and there's no question of whether something's within the president's authority or not. It's if Congress believes that it was wrongful in the sense that the president was abusing his power.

Last but not least, there's the question of an actual criminal charge. That's the highest standard. The president would have to be shown to have intended corruptly to block an investigation and not to be doing so just in the exercise of his ordinary constitutional power to say, I think this is a good idea, or, I think that's a bad idea. That's going to be a hard thing to prove in light of today's testimony because the president, through his lawyers, has already denied that that's even what he said much less that that's what he intended.

CORNISH: Right. You had the president's lawyer Marc Kasowitz saying that Trump feels vindicated and that the former FBI director's testimony makes clear that the president never sought to impede the investigation. But you also had the director of national intelligence, Dan Coats, and the NSA director, Mike Rogers, say yesterday that they never felt pressured to do anything inappropriate. So do these statements help President Trump?

FELDMAN: Their statement that they didn't feel pressured certainly does help. On the other hand, Comey's statement expressly that he took it as a direction hurts the president. So the first question is, did Trump say similar things to anybody other than Comey? And if he didn't, what was at stake when the president actually said that to Comey?

Remember that Comey himself said that he had no interest in listening to the president, but he clearly took note and thought to himself, the president has just inculcated himself - that is to say, put himself in a vulnerable position legally - by asking for a cessation to an investigation. And Comey himself said expressly in his testimony that he treated that as investigative evidence. That was a very significant statement on his part, I believe.

CORNISH: Underscoring because...

FELDMAN: Because it basically meant that at the moment when the president said to him, hold off, he thought to himself, gotcha. He thought to himself, the president has now said something which, if I can prove - which he made notes in the hopes of being able to prove - would potentially put the president in a vulnerable position in a criminal investigation.

CORNISH: Noah Feldman, Harvard Law professor - he's also a columnist for Bloomberg View - thank you for speaking with us.

FELDMAN: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.