Jonathan Turley Shuts Down Joe Scarborough Over Dubious Legal Claims

“Joe, is it fair to say with your legal background and the guests we have that we are looking at potential of obstruction of justice here?” Morning Joe co-host Mika Brzezinski breathlessly asked her fellow co-host/fiancé, Joe Scarborough during their Wednesday show. “Well, you know Mika,” Scarborough replied, “As I always said on the campaign trail when people asked me if I was a lawyer I said, 'yes, I am, but not a good one.' So, let's go to Jonathan Turley who was a good one!" Apparently, even on MSNBC the truth does emerge occasionally!

Following a lengthy monologue outlining the media narrative against Trump for obstruction of justice and impeachment, Scarborough then proceeded to have the following conversation with George Washington University Law Professor Jonathan Turley:

JOE SCARBOROUGH: You go and line up enough of these facts. You put it down on the calendar. There are a lot of prosecutors across America that would be very comfortable going in front of any federal judge trying to prove obstruction of justice under that fact pattern. Would they not, professor?

JONATHAN TURLEY:This isn't going to be real popular, but I don't think so. My family has been pressing me on this. It's sort of like going across-country with them and saying, are we there yet? Are we there yet? Everyone wants to reach that point. You say, I can still see our house. It's only been 150 days or so since the inauguration. The fact is, I don't think this makes out an obstruction case.

Nevertheless, Scarborough persisted:

SCARBOROUGH: So what would -- again, as I said, this is why we have you on, because you're a good lawyer and can answer this stuff. But, so what would be sufficient to? What is the line Donald Trump would have to cross for you to say, okay, perhaps this evidence shows that he was trying to obstruct an investigation.

TURLEY: Well, first of all, the most natural pairing is if you could show there was a grand jury in the field when Trump took inappropriate action or tried to obstruct or interfere. That would satisfy a judicial proceeding. I don't believe that that was going on at this point.

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Alas, but it appears that Joe’s previous statement with regard to his lawyering ability was, in fact, true.  Perhaps he should consider attending some of the classes taught by Professor Turley in the future.

Even NBC's own Justice Correspondent Pete Williams echoed Turley's analysis of the obstruction of justice claims against President Trump. On Wednesday's Today show, Williams explained:

But as for whether it’s obstruction, let’s assume, in spite of what the White House insists that it’s wrong, assume that the way that Mr. Comey’s memo describes the conversation is what actually happened. It sounds like what you’d think is an attempt to impede an investigation. But the legal experts I’ve talked to disagree about whether it’s obstruction. First, to prove obstruction requires proving the President knew he was doing something wrong. And it could, for example, he didn’t realize how inappropriate this was. Second, apparently just two people in the room, so it’s one man’s word against the other. But an FBI director’s notes would be credible....some legal experts say purely as a matter of law, even if the President did what the memo says, it might not be obstruction because, for example, all federal employees who work for him – work for the president, he can tell them what to do.

Here are the excerpts of the May 17 exchange:

7:03 AM

MIKA BRZEZINSKI: Joe, is it fair to say with your legal background and the guests we have that we are looking at potential of obstruction of justice here?

JOE SCARBOROUGH: Well, you know Mika, as I always said on the campaign trail when people asked me if I was a lawyer I said, yes, I am, but not a good one. So, let's go to Jonathan Turley who was a good one. I said that so they wouldn't judge me harsher on the campaign trail. Of course, it had the added benefit of being true.

Let's go, if you are setting up an obstruction of justice charge, and let's just say that instead of being president of the United States you're a private citizen and you insert these fact patterns -- this fact pattern in. We'll just walk through it.

Sally Yates goes to the White House and warns the White House in no uncertain terms that she is very concerned about Flynn, the national security adviser. She is then fired in short order by the White House. Then Flynn resigns. The next day Donald Trump pushes everybody out of the room. He's never alone in the oval office. There are always 20 people wandering around. He kicks 20 people out. He keeps the FBI director in and then says I want you to drop this. Will you drop this investigation?

The FBI director refuses. Donald Trump then fires the FBI director. The White House spokesman goes out and says, yes, he was fired because we wanted to bring the Russian investigation to an end. And then the president himself in admission against his own interests tells Lester Holt, 'yes, I was thinking about the Russian investigation when I fired the FBI director.'

I understand that obstruction of justice is a state of mind crime. You have to prove somebody’s state of mind. And that's pretty difficult at times. But you go and line up enough of these facts. You put it down on the calendar. There are a lot of prosecutors across America that would be very comfortable going in front of any federal judge trying to prove obstruction of justice under that fact pattern. Would they not, professor?

JONATHAN TURLEY: This isn't going to be real popular, but I don't think so. My family has been pressing me on this. It's sort of like going across-country with them and saying, are we there yet? Are we there yet? Everyone wants to reach that point. You say, I can still see our house. It's only been 150 days or so since the inauguration. The fact is, I don't think this makes out an obstruction case.

There's a couple of reasons why. First, in terms of Sally Yates being fired, there's ample reason to fire her when she to told the department to stand down. Even those of us who criticized the immigration order said that, you know, in many ways she didn't leave much of a choice at that point for being fired. There's a reason to do that. More importantly the obstruction of justice requires you act to obstruct or interfere usually with judicial or congressional proceeding, neither of which was pending at this time. You also tend to show it was done for a corrupt, or corruptly, to use the statutory term. This doesn't meet the usual definition of that.

Now, does that mean this can't be obstruction? Of course not. It can be evidence of obstruction, but we're not there yet. You know, this is something that was wildly inappropriate for the president to ask the FBI director, if he did ask that. This is something worthy of investigation. All of the facts that you tied together, Joe, are absolutely material, as you say. They can be the basis of an obstruction case. But I do think we need to understand that right now this is pretty thin soup for either a criminal or impeachment proceeding.

SCARBOROUGH: So what would -- again, as I said, this is why we have you on, because you're a good lawyer and can answer this stuff. But, so what would be sufficient to? What is the line Donald Trump would have to cross for you to say, okay, perhaps this evidence shows that he was trying to obstruct an investigation.

TURLEY: Well, first of all, the most natural pairing is if you could show there was a grand jury in the field when trump took inappropriate action or tried to obstruct or interfere. That would satisfy a judicial proceeding. I don't believe that that was going on at this point.

SCARBOROUGH: So, Jonathan, it seems to me you are telling us that if a president or a governor or an executive kills an investigation before a grand jury is impaneled, then they are pretty much free to do whatever they want to do?

TURLEY: No, and there's two reasons why that's not the case. First of all, if a president abuses his power, he actually can be subject to impeachment. The Nixon articles of impeachment did include an obstruction count. I think there's some distinguishing factors. But It is analogous to this one. I don't believe we satisfy that standard either. You're going to have Adam Schift on who was my opposing counsel in the last impeachment held in the United States Senate, the Pourteous trial.

We were on either side of that case. I think Adam would be the first to say this is a high standard to make. The second reason, in terms of obstruction, the law is drafted to be narrow. You don't want every statement a citizen makes to claim to be obstruction for a future proceeding. It gets too dangerously ambiguous. So, courts have tried to narrow this, to keep it confined.

This was an early stage before the grand jury. Now, does that mean there's not other crimes? No. You can have false statements to federal investigators. You can have perjury. You can have lying to congress. And, as you know, Joe, one of the things we see in this city is often it's not the original act, but the response to the scandal that gets people into trouble.

SCARBOROUGH: Right. Right.

Kevin Baker
Kevin Baker is an intern in the Media Research Center's News Analysis Division.