Andrew McCarthy explains why the idea Trump obstructed justice is now completely dead

Let's step back and recognize a few things: First, there was no collusion between the Trump campaign and the Russians to influence or rig the 2016 election. Second, official Washington knows this. It always has. What we're enduring now is a willful investigation of nothing. Why do that? Here's why: Third, even an investigation that turns up no underlying crime can, at least theoretically, produce "process crimes." This is how the Beltway crowd hopes to take down Donald Trump. Goad him into abusing his power to try to somehow squelch the investigation, and even though the investigation was ultimately about nothing, and you could still nail the president for "obstruction" or a "coverup" or something of that nature.

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This has been the goal of the Beltway crowd all along. An intermediate goal is to cast a shadow over his presidency by creating the impression that he is under investigation, but ultimately they hope to trap him in a process crime and use that as the pretext for impeachment. There's one problem, though: Trump hasn't obstructed justice, and as Andrew McCarthy so beautiful explains here, the testimony of James Comey himself proves it:

But if the official impeded or halted the investigation for a legitimate purpose, there could be no obstruction. This underscores the importance of the word corruptly. Not all acts to influence, impede, or outright halt an investigation violate the law; only corrupt ones. So, what would be a legitimate reason to halt an investigation? This brings us to the second important principle: executive discretion. It is not enough to say the president is the chief executive. In our system, he is the only executive with constitutional power. (“The executive Power shall be vested in a President of the United States of America” —Article II, Section 1.) Every other executive-branch officer is not just subordinate to the president. These inferior officers do not have their own power. The power they exercise is the president’s power. They are mere delegates.

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These subordinate executive officials include FBI agents and federal prosecutors. Every day, throughout the United States, these officials exercise executive discretion to shut down investigations or decline prosecutions. Very often, these are cases in which crimes have been committed and a prosecution would be viable. In our system, it is not mandatory that a viable case be indicted and prosecuted. Instead, in each case, agents and prosecutors weigh the equities: the seriousness of the crime, including the harm to any victims, versus personal considerations relevant to the suspect — his history of criminality or positive contribution to society, whether other negative consequences have befallen him such that prosecution would be overkill, whether there are means other than the criminal law (such as civil suits or community service) that would adequately address the wrongdoing, etc. The Justice Department (of which the FBI is a component) decides, based on the totality of the circumstances, whether further investigation and prosecution are warranted. In this, again, they are exercising the president’s power. In light of the fact that the president is their superior and the power is his, the president cannot have less discretion than a United States attorney or an FBI supervisor does in weighing the equities and deciding that a case should not be pursued. Charging discretion, moreover, is like the pardon power in this regard: It is a power of the executive that is unreviewable by the courts.

McCarthy puts a great deal of emphasis on a point that a lot of people seem to miss: The FBI is not an independent agency, regardless of how much James Comey may have wanted it to be. It is part of the executive branch, and is answerable ultimately to the president. If Trump had ordered Comey to stop investigating Mike Flynn, he would have been within his authority to do so. Who gets investigated and who doesn't is ultimately an executive decision, and the president is free to exercise his discretion and personally make that decision if he wishes to do so.

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In fact, according to Comey's own testimony, Trump neither ordered the investigation stopped nor threatened Comey if he did not do so. Indeed, the investigation continues to this day. Trump could stop it any time he wanted to, using his legitimate executive authority as president. He has not done so. For the record, Trump insists he did not ask Comey to drop the Flynn investigation and has indicated he's willing to testify under oath to that effect. So Trump has called Comey a liar, which is turnabout since Comey called Trump a liar. But even though we're looking at your classic he said/he said, the fact is that even if Comey's claims are 100 percent true, it does not make Trump guilty of obstruction of justice. The nature of executive authority in the Constitution makes that plain by definition. There has been much huffing and puffing in the media that Comey's testimony was terrible for Trump because it furthers the notion that he was guilty of obstruction. But the people writing that are seeing obstruction in a political sense, not understanding it in a legal sense. Granted, Congress doesn't have to find the president guilty of a crime to impeach him. They can draw up articles of impeachment based on whatever they want. But the House is not going to impeach the president for using his legitimate authority to object to an investigation that's part of a larger waste of time. The Beltway crowd has failed to lure Donald Trump into an impeachable process crime, and James Comey's own testimony proves it.

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