Texas Senator John Cornyn, the number two Republican in the Senate, suggested that firing Comey after not shutting down the Flynn investigation proved Trump wasn’t trying to shut it down. “As a general proposition, if you're trying to make an investigation go away, is firing an FBI director a good way to make that happen?” Cornyn asked Comey, who replied that “It doesn't make a lot of sense to me but I'm hopelessly biased given that I was the one fired.”
David Gomez, a senior fellow at George Washington University’s Center for Cyber and Homeland Security and a former FBI agent, said he didn’t find that line of argument persuasive. “I failed to follow Cornyn’s logic. Especially given the public reasons for the firing,” Gomez said. “Firing the man in charge of the FBI—and replacing him with your own man—is exactly what I would expect if you were trying to impede an FBI investigation.”
On the surface, the argument for exculpatory ineptitude may seem absurd; if you try to rob a bank, and you slip on a banana peel and knock yourself out, you have still attempted to rob a bank. But the argument that Trump simply didn’t try hard enough to shut down the Flynn investigation is exactly the argument that a defense attorney might make if they were defending a client against an accusation of obstruction of justice, because it attacks the idea that there’s sufficient evidence to support the charge.
“If an actor has corrupt intent, any act intended to obstruct justice is enough, whether or not it succeeds,” said Bruce Green, a former associate counsel in the Iran-Contra affair and a law professor at Fordham. “But the Senators' point here may be that you can't infer from President Trump's acts that he was trying to derail the investigation, because if he really wanted to do so, he could have done so more effectively.”
That question of intent is ultimately more important than whether or not Trump got what he wanted. "The obstruction crimes are crimes of attempt, not of result," said John Q. Barrett, a former associate counsel in the Iran-Contra case and a law professor at St. John’s. "It's worse certainly if obstruction of justice succeeds, but frankly those are the ones we don't learn about and don't get prosecuted."
To that point, Trump’s decision to ask everyone to leave the room before he broached the subject of the Flynn investigation with Comey may ultimately be crucial.
“Often in conducting a criminal investigation, the hardest thing to demonstrate is intent," said Mike German, a fellow at the Brennan Center for Justice and a former FBI agent."Asking people to leave the room before you have a conversation is an indication that someone has a bad intent in what they're doing and don't want witnesses."
Risch’s focus on Trump’s phrasing, that Trump “hoped” Comey would not prosecute Flynn, doesn’t leave Trump in the clear. "A light touch or a one time request, or a non-raised voice suggestion, could well be sufficient endeavor to constitute the crime," said Barrett.