//  6/13/17  //  In-Depth Analysis

Can expressing a “hope” that something occurs count as obstruction of justice under federal law? That odd question was at the heart of one of the most notable moments in Former FBI Director James Comey’s riveting testimony before the Senate Intelligence Committee last week. Explaining how the conversation ended up revolving around “hope” requires a bit of background, so bear with us.

In his written remarks, submitted the day before his in-person appearance, Comey described a February meeting with the President in the Oval Office. The meeting included several important officials such as the Attorney General as well as Senior Adviser Jared Kushner. After the meeting, the President said that he wanted to speak to Comey alone. When the Attorney General and Kushner lingered, the President told each that he wanted to talk to Comey alone.

Once alone with Comey, the President said “I want to talk about Mike Flynn.” Later, the President said “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.”

At the hearing, Senator James Risch (R-Idaho) pressed Comey about the precise phrasing of President Trump’s words:

RISCH: He did not order you to let it go?

COMEY: Again, those words are not an order.

RISCH: He said, I hope. Now, like me, you probably did hundreds of cases, maybe thousands of cases, charging people with criminal offenses and, of course, you have knowledge of the thousands of cases out there where people have been charged. Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where they said or thought they hoped for an outcome?

COMEY: I don't know well enough to answer. The reason I keep saying his words is I took it as a direction.

RISCH: Right.

COMEY: 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.

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

COMEY: Correct.

RISCH: He said, I hope.

COMEY: Those are his exact words, correct.

RISCH: You don't know of anyone ever being charged for hoping something, is that a fair statement?

COMEY: I don't as I sit here.

We are here to provide the answer to Senator Risch’s question that Comey didn’t have at the ready—there are indeed cases where defendants have been punished for making a threat, and obstructing justice, based on statements that expressed a “hope” for an outcome. To the extent that Senator Risch seems to believe that it is legally impossible to obstruct justice if one attempts to do so by speaking in terms of one’s “hope,” the Senator is flatly incorrect.

To be clear, we aren’t arguing that making out a successful obstruction of justice case against the President would be easy. We recognize that, if the President ever has to answer to obstruction-of-justice charges, the most likely forum will be the House and Senate for impeachment proceedings, and not a court of law for a criminal prosecution. And if a criminal prosecution were ever to occur, there are several legal difficulties that would need to be addressed, as Andrew Crespo has explained on this site—most significantly, perhaps, whether the relevant statutes even cover the President at all. But the point is that the significant legal hurdles do not include the President’s choice to phrase his instructions to Comey in terms of a declarative sentence expressing a “hope” rather than through an imperative command (“Drop the Flynn investigation or you’re fired.”).

We must confess, though, to being puzzled why this analysis was even necessary. Anyone familiar with human interaction knows that it is eminently possible to express a command or a threat using the phrase “I hope.” (“I hope you don’t forget our anniversary next week.” “I hope you can get this memo on my desk by tomorrow morning.” “I hope no one burns your store down because you haven’t paid for ‘insurance.’”)

Given this obvious truth, it would be odd indeed if the law provided a get-out-of-jail-free card to anyone who tried to obstruct justice, but was careful to do so using only “I hope” statements. Imagine an armed Mafioso showing up at the home of a juror on the eve of trial and telling the juror “I hope you can see your way clear to acquitting the boss tomorrow.” Could it really be true that the Mafioso would avoid obstruction-of-justice charges so long as he said “I hope” rather than “vote to acquit . . . or else”?

Is the law possibly that inane? That would make about as much sense as the rule that undercover cops can’t lie if you ask “are you a cop?” (There is no such rule, despite widespread belief to the contrary; and that’s a good thing, too, as such a rule would make undercover investigations impossible.) Luckily, the law—though it is too formal or technical in many ways—usually is not that concerned with form over substance. If someone does the very thing that a criminal law was designed to prevent, usually he won’t avoid liability simply because he used or didn’t use an arbitrary sequence of words.

In short, law isn’t magic, and it isn’t wholly devoid of common sense. (And, quite frankly, Senator Risch should know that, given that he is himself a lawyer and a former prosecutor.)

All this holds true for obstruction of justice in particular. But don’t just take our word for it; consider the following cases where individuals were convicted, or had their sentences enhanced, for making unlawful threats or orders that came in the form of statements where the operative verb was “hope”:

In United States v. McDonald (8th Cir. 2008), the defendant pled guilty to robbing a bank. He was then sentenced under a provision of the United States Sentencing Guidelines (3C1.1) that directs a higher sentence for defendants who obstruct justice or attempt to do so. Two pieces of evidence supported the conclusion that the defendant had obstructed justice—a note the defendant had written, and a letter that stated “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.”

In United States v. Harris (6th Cir. 2001), the defendants were charged with attempting to kill a federal informant. Part of the evidence supporting the defendants’ convictions were the statements they made to the intended victim. The court described the statements as follows:

[One defendant] commented to Mr. Madison that someone in the house was dying and that Madison would die next. Grayson added, “I hope you have got insurance.”

In United States v. Bedoy (5th Cir. 2016), the defendant was convicted of attempting to obstruct an official proceeding and the administration of justice. Some of the evidence, again, was a statement about what the defendant hoped would occur:

He then stated, “I['m] just hoping you haven't told anyone anything.... Like, ya know, talking or anything like that.”

In United States v. Harper (6th Cir. 2001), the defendants pled guilty to conspiracy to distribute and possess with intent to distribute marijuana. They, too, were also received the obstruction of justice sentencing enhancement. Part of the evidence used to support the enhancement was a letter that read:

“I hope and pray that you will do the right think [sic] about this because you know that you got me into all this mess.”

Finally, in United States v. Peterson (2nd Cir. 2004), the defendants were convicted of conspiring to distribute heroin. And they, too, were sentenced under the obstruction-of-justice provision. The evidence that supported the enhancement included a letter to a potential witness. The letter said, in relevant part:

“I hope Roland [Onaghinor] don't think you told all them lies on him, that he read in those court papers and get scared and cop-out thinking they going to railroad him.”

We will stop there, though there are further rabbit holes we could go down. These cases suffice to show that courts don’t hesitate to recognize obvious threats for what they are, even when expressed using statements expressing a “hope.” We’ve focused on obstruction-of-justice cases, but we’re confident similar examples could be found for other crimes like extortion that involve threats.

There are ways to distinguish these cases, to be sure. For one, the standard of proof for the obstruction-of-justice sentencing enhancement is less demanding than that for a criminal conviction. A conviction must be proved beyond a reasonable doubt; a sentencing enhancement by a mere preponderance of evidence. But that goes only to how confident a decision-maker has to be about the meaning of a statement and the intent lying behind it—there’s no legal reason why a statement that qualifies as obstruction for sentencing purposes couldn’t similarly form the basis of a criminal prosecution.

Now, perhaps if the case ever found its way into court Trump could argue to the jury that he wouldn’t have said “I hope” if his words were an order; if he’d meant to give an order, he would have said so more plainly. This argument would be fair game. Supporting it is a tweet by Trump’s son, Don Jr., who said that “Knowing my father for 39 years when he ‘orders or tells’ you to do something there is no ambiguity, you will know exactly what he means.” If Trump could show that he speaks more plainly when he intends to convey a threat, perhaps he could create reasonable doubt.

But perhaps not, as there is evidence that Trump actually does like to use “hope” to convey threats—in the context of James Comey in particular, even. Just weeks before Comey’s testimony, on May 12, he tweeted:

“James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” We suspect that even Senator Risch might strain to characterize these words as something other than a thinly veiled threat.

Another potential objection is that in many of the cases we cite, there was other evidence of obstruction or threats that helped demonstrate that the defendants really did have the forbidden intent to obstruct justice. But here, too, there’s also further evidence of intent. Before Trump told Comey his “hopes” about Mike Flynn, Trump cleared the office of everyone else. If Trump was just expressing a meaningless opinion, as opposed to an order or threat, why would he have cared who heard it? There’s also the fact that Trump followed through on the implicit threat behind the order—Trump fired Comey, in Trump’s words (and in Comey’s understanding), for Comey’s failure to resolve a Russia-related investigation in the way Trump wanted him to.

Other context for the statement likewise suggests that Trump’s “hope” about what would happen to Mike Flynn is best understood as an order to Comey. Most obviously, Trump is Comey’s boss. He’s also the President of the United States. When a boss expresses a “hope” that something would occur, and the employee has the power and authority to make that something occur, that reads like an order. That statement has the extra oomph of an order particularly when that boss has the power to fire the employee without cause. (Perhaps especially so when the President in question literally tried to trademark the catchphrase “You’re fired!”). For these reasons, the National Labor Relations Board found that an employer threatened an employee by saying “‘Well I hope you won’t continue to be an agitator or antagonize the people in the newsroom.’’

Our argument here is, we stress, narrow. Our point is not that every statement phrased as a “hope” of an outcome is a threat that that outcome occur. For an example to the contrary, consider Rankin v. McPherson, where the Supreme Court concluded that a government employee’s statement that "[I]f they go for him again, I hope they get him” about President Reagan after the 1981 assassination attempt was not a criminal threat and in fact was speech protected by the First Amendment. The point, instead, is that, contrary to Senator Risch’s assertion, some statements expressed in terms of a “hope” can be threats forbidden by the law.

That much, we think, the foregoing analysis makes clear. Whether Senator Risch will pay any attention, we don’t know. But we can hope.

 

 


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