Amicus With Dahlia Lithwick: "Nice Little FBI You’ve Got Here. Pity if Something Happened to It."

Episode Date: June 10, 2017

Main Theme & Purpose

This episode is devoted to unpacking two urgent legal questions in the Trump era:

1. Obstruction of Justice: What does it actually mean under federal law, especially in the wake of James Comey’s firing and his testimony about encounters with President Trump?
2. Presidential Speech as Legal Evidence: How should courts weigh President Trump’s public and especially Twitter statements, particularly as they pertain to litigation over the travel ban?

Guest experts Stanford law professor Robert Weisberg and Cardozo law professor Kate Shaw join host Dahlia Lithwick to break down the complexities, citing real statutory language, court precedents, and the tension between legal tradition and the peculiar forms of presidential rhetoric.

Part I: What Is Obstruction of Justice?

With Robert Weisberg, Stanford Law Professor (Criminal Law & Procedure)

Explaining Obstruction of Justice

[02:24-06:39]

• Federal Statutes: The core statutes, 18 USC §1503 and §1512, criminalize interference with a legal proceeding that is taken “corruptly.”
• Definition for Laypeople:

  “If you take steps to prevent the fair adjudication of that proceeding or to deny that proceeding and the officials who are running it access to the information they need, you can be guilty of a federal crime—along with another requirement, though... if you do this act corruptly.” (Robert Weisberg, 02:46)

• Forms of Obstruction: Witness tampering, destroying evidence, lying, or using heavy persuasion to sway officials.
• What Counts as a “Proceeding”: Not just trials or grand juries—a sufficiently targeted FBI investigation can also qualify.

The Trump-Comey Context

[06:39-09:08]

• Was Trump Obstructing Justice?
  • Trump had the power to fire the FBI Director and set investigative priorities, but:

    “An act which you can otherwise do legally can become illegal obstruction if you do it corruptly.” (Robert Weisberg, 05:59)

Parsing “‘I hope you can let this go’”

[09:08-11:59]

• Legal Weight of Words Like “Hope”:

  • Republicans: “Hope” isn’t a directive.
  • Democrats: In context, especially with power imbalances, “hope” can function as a threat.
  • Weisberg refers to “gangster” language:

    “Nice little story you have here. Shame if something happened to it... Hope could be uttered with a wink and a nod or a look or a tone that could reasonably be interpreted as a threat." (Robert Weisberg, 09:32)

• Legal Test:

  "Would a reasonable person in Comey's position hear it as a threat or an order? And would a reasonable person in Trump's position realize it would be so interpreted?" (Robert Weisberg, 09:54)

Did Comey Have a Duty to Object?

[11:59-15:44]

• No Legal Requirement for Immediate Protest:

  “Absolutely not. ... Comey is a very savvy and strategic lawyer, but he's a human being... It’s not that he would be entrapping Trump… but on the other hand, he would, in a sense, be inducing the crime in a way he'd feel uncomfortable with.” (Robert Weisberg, 12:41 and following)

• Comey’s Position in Testimony:

  • He chose not to characterize the conversation as “obstruction,” deferring to Special Counsel Mueller to make that determination.

Could Trump Lack ‘Corrupt Intent’ Due to Ignorance?

[15:44-19:29]

• Trump’s Possible ‘Ignorance’ Defense:

  • Some assert that Trump’s lack of legal experience, “norm-defying” behavior, or unfamiliarity with propriety might shield him from criminal liability.

• Weisberg is Skeptical:

  “Ignorance of the law is no excuse... it's completely irrelevant whether Trump understood the possible illegality of what he was doing.” (Robert Weisberg, 16:59)

  “Trump can't be accused of doing something improper because he's never understood the rules of propriety. Okay? You can't blame him for using the soup spoon to eat his salad because he didn't read Emily Post.” (Robert Weisberg, 19:21)

What Would Make an Obstruction Case?

[19:29-21:31]

• Pieces That Build the Case:
  • Clearing the room before talking to Comey.
  • The “loyalty pledge.”
  • Comments like “Do you like your job?”
  • The “hope” statement itself and its tone.
• Weisberg’s Take:

  “It's the combination of these that could make the case that crosses the line... you could, to use your term, construct the obstructive act from a lot of little pieces.” (Robert Weisberg, 20:08 & 21:24)

Comey’s Literary Style

[21:31-23:07]

• Weisberg notes Comey’s testimony and public statements resembled a blend of Hemingway, Victorian narrative, and “a 1940s gangster type stuff.”

  “There were Hemingway-esque touches, no question about it... this may turn out to be the most heavily parsed conversation or set of conversations in the history of our species since Hamlet shattered Ophelia.” (Robert Weisberg, 21:59 & 22:50)

Part II: All the President’s Tweets

With Kate Shaw, Associate Professor, Cardozo School of Law; Supreme Court Analyst

The Legal Status of Presidential Tweets

[23:28-29:57]

• Travel Ban Litigation: Trump’s tweets (e.g., “TRAVEL BAN”) blatantly contradict the Justice Department’s legal defense that the order isn't about religion or a Muslim ban.
• Official Status:
  • White House Press Secretary Spicer declared:

    "They’re considered official statements by the President of the United States." (Sean Spicer, cited by Kate Shaw, 25:53)

Presidential Speech and the Law—Historical Context

[26:49-29:57]

• Presidential Rhetoric as Power: The presidency has always included a “bully pulpit,” but the channel (now, Twitter) is new.

  “A lot of the President's power is not formal power. Right. It's actually rhetorical power.” (Kate Shaw, 26:49)

• Not Entirely New Problem: Past presidents also made statements outside legal briefs—challenges about whether such remarks should affect judicial decision-making date back decades.

When Do Presidential Statements Matter in Court?

[29:57-35:48]

• Examples:

  • Obama & ACA: President denied on TV that the individual mandate was a tax, while government lawyers argued otherwise in court. The Supreme Court didn’t use the statement in its ruling.
  • Obama & Immigration Action: District court repeatedly cited Obama defending DAPA as having “changed the law,” even though this was in a heckler-heavy, unscripted setting.

  “We don’t usually put so much stock in those kinds of statements. ... Politicians or government officials often, you know, defend policies broadly and then litigate them differently.” (Kate Shaw, 35:37, summarizing a Fifth Circuit Judge dissent)

Drawing the Line: Which Statements Should Count?

[35:48-41:05]

• Difficult Goalposts:

  • Should courts consider (a) everything a President says—even offhand, decades-old remarks? Or (b) only official, vetted statements?
  • Subject matter and formality matter: statements in the State of the Union or an official address may count for more.

  “If you have a legal test of which intent is a component, the only way you really can satisfy that legal test is through kind of statements and conduct.” (Kate Shaw, 38:37)

• Travel Ban Is a Special Case:

  • Because intent (esp. regarding religious animus) is key, the courts may need to consider statements even outside official documents—sometimes even stretching back to the campaign.

Should Pre-Inauguration Statements Matter?

[40:07-41:05]

• Kate Shaw’s Position: Given Trump’s persistent statements before and after inauguration, and his continued tweets, it's reasonable for the courts to look back at older statements.

  “I do think in this case it is appropriate to go back before January 20th... that argument is significantly weakened by these new tweets that sort of reassert ‘this is a travel ban’ in all caps.” (Kate Shaw, 40:09 & 40:43)

Are Tweets Different? What Should Courts Do With Them?

[41:05-45:12]

• Tweets Are Informal—But Still Presidential:

  “Even really informal statements, and maybe especially sometimes really informal statements can be probative of intent… In the context of establishing intent, I do think that Tweets are fair game." (Kate Shaw, 41:56)

• Courts might not use tweets to interpret executive orders directly against contrary legal arguments by the DOJ—but they can’t just ignore them.
• Tweets challenge internal executive branch processes (e.g., DOJ’s authority to interpret executive orders).

Do Judges Want This Job?

[45:12-47:51]

• Judges dislike parsing tweets and offhand presidential remarks for legal meaning, but to ignore public statements entirely would be irresponsible.

  “They wish he would stop tweeting about things of legal significance. Right. ... It's a perfectly fine medium to announce an event or to build suspense about something ... but to substantively weigh in, particularly about matters that are the subject or could be the subject of litigation, I'm sure they would prefer to be spared having to wrestle with these questions.” (Kate Shaw, 46:29)

• Hopeful for clearer principles in the future.

  “If the judges could give us some clarity about what those exceptions look like, then I think it would serve everybody's interest. ... But we have just no real question clarity right now.” (Kate Shaw, 47:25)

Notable Quotes & Memorable Moments

• On Trump’s “Hope” Statement

  “Hope could be uttered with a wink and a nod or a look or a tone that could reasonably be interpreted as a threat. ... we get a little closer to the gangster saying, nice little story you have here.” (Weisberg, 09:32)

• On Ignorance as a Defense

  “Trump can't be accused of doing something improper because he's never understood the rules of propriety. ... You can't blame him for using the soup spoon to eat his salad because he didn't read Emily Post.” (Weisberg, 19:21)

• On Courts’ Discomfort with Presidential Tweets

  “Judges don’t like to be told to blinker themselves to something, but also really don’t like engaging in messy conversations about tweets and things that, you know, Trump said on Howard Stern. ... This is not why they got into Article 3 judging business.” (Lithwick, 45:12)

• On the “Twitter Presidency”

  “The Twitter presidency is definitely going to inspire many, many law review articles and dissertations. And it does feel like we are sort of early in, I think, even my own thinking about it.” (Kate Shaw, 41:56)

Segment Timestamps

• [02:24] – Weisberg explains “obstruction of justice” statutes
• [06:39] – Travel ban vs. Flynn investigation: does it matter for obstruction?
• [09:08] – The legal significance of “hope” and intimidation
• [11:59] – Do targets (Comey) have to push back for obstruction to count?
• [15:44] – Can Trump’s inexperience or ignorance negate corrupt intent?
• [19:29] – What specific facts would establish obstruction?
• [21:31] – Literary analysis of Comey’s testimony
• [23:28] – Dahlia Lithwick introduces the segment on presidential tweets
• [25:53] – Sean Spicer’s statement: tweets = official presidential statements
• [26:49] – Kate Shaw: Historical context for “extracurricular” presidential speech
• [29:57] – Obama-era case studies—when have courts taken presidential speech seriously?
• [35:48] – Setting boundaries: what presidential speech should courts consider?
• [40:07] – Should courts consider statements made before Trump took office?
• [41:05] – Are tweets categorically different than other venues?
• [45:12] – The dilemma for judges: weighing tweets vs. ignoring them

Conclusion

This episode provides a richly detailed, accessible crash course in two of the thorniest legal issues of the Trump era: the definition and prosecutability of obstruction of justice for presidents, and the evolving status of presidential communications (especially via Twitter) in the courts. Dahlia Lithwick, Robert Weisberg, and Kate Shaw explore the intersection of legal doctrine and a president who defies both norms and mediums, giving listeners a comprehensive reckoning with legal boundaries and their potential breakdowns.