//  6/13/17  //  Commentary

In testimony to the Senate Intelligence Committee this past Thursday, recently fired FBI Director James Comey described how, in his view, President Trump directed him to end the FBI’s investigation of fired NSA director Michael Flynn. According to Mr. Comey, President Trump’s direction lay in part in this verbiage: "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, Senators James Risch of Idaho and James Lankford of Oklahoma suggested that “hope” was not direction, but rather, perhaps, a mere wistful, influence-free expression of desire. Mr. Comey responded that he understood the “hope” language from his superior, the President, to be direction to end the Flynn investigation. When Senator Risch asked Mr. Comey if he could name a case where “hope” verbiage was used a the basis for an obstruction of justice charge, Comey in the moment could not. 

A conviction for obstruction of justice requires the government to prove to a jury beyond a reasonable doubt that a defendant obstructed, influenced, or impeded an investigation. And anyone who’s ever had a boss knows that when their superior says, for example, that “I hope you achieve your goals this quarter,” it is not an inconsequential expression of aspiration but rather a command laced with an implied threat.

Given that the default, common sense answer from our everyday lives is that “hope” from a superior is direction, we might reasonably expect there to be very few court cases explicitly ruling on whether “hope” verbiage is sufficient for an obstruction of justice charge: defendants will tend not to make this (weak) argument and courts will therefore tend not to address it.

Similarly, the absence of holdings striking down a conviction based on “hope” should be informative. Imagine, by analogy, that the language at issue were “I command you to do X.” Given the obviousness that this language constitutes direction, we wouldn’t expect to find many cases either explicitly upholding this language as a basis for obstruction of justice, nor striking it down as insufficient. Thus, if it’s true that most reasonable people similarly understand “hope” verbiage as constituting direction, we would expect there to be few cases upholding that language as a basis for an obstruction of justice conviction, nor many rejecting it.

To check this hypothesis, I reviewed all federal circuit courts of appeals cases, federal district court cases, and state supreme court cases for obstruction of justice cases involving a defendant’s use of language similar to “I hope” or “I’m hoping.” The results are in line with what we would expect if “hope” verbiage is uncontroversially and generally understood as implying direction:

  • At least two federal circuit courts of appeals have upheld obstruction of justice charges in part on the basis of “hope” verbiage—both of which have been distributed by commentators on Twitter. In another which I have found, another circuit court of appeals upheld an obstruction charge with similar language, on unrelated grounds. These cases are described briefly below.

  • No federal circuit courts of appeals appear to have struck down an obstruction of justice charge on the basis that a reasonable juror could not have found “hope” verbiage to constitute obstruction, influence or impediment of an investigation.

  • No state supreme courts appear either to have struck down (or explicitly upheld) an obstruction of justice conviction based on “hope” language. (Of course, state obstruction of justice statutes may differ from one another and from the federal statutes.)

  • No federal district courts, at least among searchable published opinions, have dismissed an obstruction of justice charge on the basis that “hope” language was insufficient.

The federal circuit courts of appeals cases come from the Fifth, Sixth, and Eighth Circuits. As noted by Adam Liptak on Twitter and in a New York Times podcast, the Fifth Circuit in 2016 ruled in United States v. Bedoy that the following language was sufficient circumstantial evidence to allow a rational jury to conclude that the defendant acted with intent to impede an investigation: “I[‘m] just hoping you haven’t told anyone anything . . . Like, ya know, talking or anything like that. Just don’t ah ya know?” In the Eighth Circuit case United States v. McDonald, as Victoria Kwan noted on Twitter, the court ruled that the district court did not err by imposing a sentencing increase for obstruction of justice based in part on the following language: “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[.]” Leah Litman and Dan Epps have discussed these and others cases on Take Care.

In the one other federal circuit court of appeals case I found with “hope” language described in the opinion, the plaintiff apparently did not even attempt to argue that the language was insufficient for an obstruction of justice conviction. In that case from the Sixth Circuit, the court upheld an upward sentencing adjustment for obstruction of justice on other grounds where a defendant’s obstructive letter said, inter alia, that “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.” United States v. Harper, 246 F.3d 520 (6th Cir. 2001). Of course, since the court ruled on other grounds, it does not indicate an explicit endorsement of “hope” language as a basis for obstruction of justice. But the fact that the plaintiff apparently didn’t even make the argument is another data point for what we already know: when a superior says “I hope you do this,” the superior is directing you to do it.

Thus, to the extent that we need court cases—or the absence of them—to prove what we already all know, “hope” as a basis for obstruction of justice is well supported in case law.

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On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

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By David Strauss: Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.

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