There’s been a lot of talk of obstruction of justice of late, and we’ve been part of it. In the three weeks since President Trump fired FBI Director James Comey and two weeks since the New York Times bombshell report that Trump had asked Comey to drop the investigation into former National Security Adviser Michael Flynn, many commentators have examined whether evidence of President Trump’s behavior currently in the public record amounts to a prima facie case of obstruction of justice. In several prior pieces on Lawfare, writers looked at the question of how big a problem President Trump has under the obstruction statute.

The U.S. Attorneys’ Manual breaks down the three elements of an obstruction charge: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

Our previous analysis focused on the third, and seemingly most complex, element: whether Trump’s conduct qualified as an effort to influence, obstruct, or impede justice and whether there is evidence that he possessed the requisite mental state to do so “corruptly.” Indeed, we took the first two elements as a given: “Here, the first two elements are abundantly clear. Assuming the Times account is correct, there was clearly an investigation, and Trump clearly knew about it.”

Not so fast, as it turns out. That statement missed an important and complex question—and one that may actually shield President Trump from exposure under the obstruction statute (though not under the impeachment clauses): whether an FBI investigation even counts as a “pending proceeding” for purposes of the agency obstruction of justice statute, 18 U.S.C. § 1505.

In an op-ed last week, Professor Elizabeth Foley made the case that FBI investigations are covered only by 18 U.S.C. § 1510, a narrow statutory provision that prohibits only interference by means of bribery:

In the almost 120 years since Section 1505 and its predecessor have been on the books, no court appears to have ever held that an ongoing F.B.I. investigation qualifies as a “pending proceeding” within the meaning of the statute. Instead, Section 1505 applies to court or court-like proceedings to enforce federal law. In addition to prosecutions (where charges have been filed with a court), such proceedings include actions of enforcement by federal agencies such as the Internal Revenue Service, Securities and Exchange Commission or National Labor Relations Board, in which the agency has broad powers not merely to investigate statutory violations, but also to enforce them via subpoena or other administrative proceedings.

Foley may be right. A fair bit of authority suggests that an FBI criminal investigation is not a “pending proceeding” for the purposes of § 1505. The government has long conceded this point, in fact. Indeed, the U.S. Attorney’s Manual makes the blanket concession that “investigations by the Federal Bureau of Investigation (FBI) are not section 1505 proceedings”—an interpretation that may well guide Special Counsel Robert Mueller in the conduct of his duties.

In one case often cited for this proposition—United States v. Higgins, a concise federal district court opinion—a police chief was indicted under § 1505 for allegedly alerting the target of an FBI investigation to undercover surveillance. Dismissing the charges, the court found that “the meaning of ‘proceeding’ in § 1505 must be limited to actions of an agency which relate to some matter within the scope of the rulemaking or adjudicative power vested in the agency by law.”

The case law on obstruction of FBI investigations is sparse in part because the Bureau can charge crimes that are much easier to prove—§ 1001 for making false statements, for instance—and because key modalities of obstruction of FBI investigation are individually criminalized. It is, for example, a crime to tamper with witnesses, a crime to bribe a law enforcement officer, and a crime to destroy evidence.

So is Trump off the hook on obstruction? Hardly. For one thing, it’s not entirely clear that Higgins is correct. At least some scholars doubt that the 36-year-old district court case, whose reasoning seems counter to a number of circuit court decisions defining “proceeding,” is the best reading of the law.

The obstruction statutes have generated enormous confusion and inconsistent analyses not only in the recent responses to allegations against President Trump, but also for decades in the courts. Georgetown Law Professor (and former federal prosecutor) Julie O’Sullivan argues that the obstruction statutes—”incompletely defined, redundant, and internally inconsistent”—are emblematic of larger problems in the U.S. criminal code. Because the code has been modified in reaction to specific events such as Enron, the provisions are “fairly incoherent, often overlapping, and overbroad—leaving much to the discretion of prosecutors.” When judges must fill in gaps and try to give coherence to the tangle of statutes, the result is often inconsistency across jurisdictions and difficulty predicting how a novel set of facts might be read against the statutes. So it’s perfectly possible that the Higgins interpretation of § 1505 will not be the prevailing one.

Moreover, as Andrew Crespo recently noted, the FBI investigation may not be the only proceeding at issue here:

even if [the] narrower view [of § 1505] were to prevail, Trump arguably endeavored to influence two other investigations that, as others observe, are more clearly covered by the statute: the pending grand jury investigation of Michael Flynn, and the pending congressional investigations of Russia’s role in the election. The former, in particular, seems potentially significant, given that Trump expressly mentioned Flynn during the Valentine’s Day tête-à-tête, telling Comey “I hope you can see your way clear to letting this go, to letting Flynn go.” So, there is at least some evidence that Trump made efforts to influence one or more potentially qualifying investigations, which could constitute one or more actus rei, although there are certainly arguments the other way.

Of course, we don’t know for sure that there is a grand jury proceeding to obstruct. While there have been reports of grand jury subpoenas in the investigation into Michael Flynn, it isn’t entirely clear when exactly those subpoenas went out and whether President Trump was aware of the grand jury investigation at the time of his potentially obstructive actions. But if the grand jury investigation did exist at the relevant time, and Trump knew that it existed, and he intended to obstruct it in some way, that could add up to violation of 18 U.S.C § 1503, a related provision of the criminal code focused on judicial proceedings.

Moreover, even if the Higgins test is correct in the specific context in which it was articulated, there’s at least some reason to wonder if some of the specific FBI activity here might actually qualify as a “proceeding.”

In United States v. Kelley, the D.C. Circuit rejected the Higgins formulation, holding that an AID Inspector General investigation was a § 1505 proceeding. The court noted that where other courts have found purely investigative activities to fall within § 1505, “the investigations typically have involved agencies with some adjudicative power, or with the power to enhance their investigations through the issuance of subpoenas or warrants.” In other words, “[f]or an investigation to be considered a proceeding . . . it must be more than a ‘mere police investigation.’” Although the IG lacked rulemaking or adjudicative power, because it was “empowered to issue subpoenas and to compel sworn testimony in conjunction with an investigation,” its investigation counted as a § 1505 proceeding.

The Kelley test, then, is that the proceeding must be more than a “mere police investigation,” and the proxy for what is sufficiently more than a mere police investigation is whether the investigating agency has authority to issue subpoenas or warrants or compel sworn testimony in the matter. Other courts have adopted the Kelley test. The indictment in United States v. Pacific Gas & Electric alleged obstruction of an investigation by the National Transportation Safety Board (NTSB) of a fatal gas line explosion. PG&E moved to dismiss the § 1505 charges, arguing that, per Higgins, an NTSB investigation was not a 1505 proceeding. The court found that under the reasoning in Kelley, the NTSB investigation was a proceeding because the NTSB had broad authorities to enhance its investigation by issuing subpoenas, administering oaths, and holding hearings.

Here’s the thing: as the Attorney General Guidelines state, “[t]he FBI is an intelligence agency as well as a law enforcement agency.” Accordingly, its functions and powers “extend beyond limited investigations of discrete matters, and include broader analytic and planning functions,” with authority “derive[d] from various administrative and statutory sources.” On Lawfare, Aditya Bamzai explained some of the differences between a counterintelligence investigation and a criminal investigation:

Counterintelligence investigations are different from criminal investigations in several ways. For one thing, the goal of a counterintelligence investigation may be different from, and perhaps broader than, a criminal investigation. A criminal investigation would ordinarily pursue allegations of criminal conduct. A counterintelligence investigation, by contrast, may pursue allegations of “coordination” between U.S. persons and foreign hackers that may be unseemly and problematic if true, but potentially not criminal—such as, to use Professor Kent’s example, the possibility that a person within the United States coordinated to distribute material previously hacked by agents of a foreign government. As the Attorney General’s Guidelines for Domestic FBI Operations explain, the FBI is “not limited to ‘investigation’ in a narrow sense, such as solving particular cases,” but may also collect information to support “broader analytic and intelligence purposes.” In the case of the FBI, the line between counterintelligence and criminal investigations may not be a bright one. “In many cases,” as the Guidelines put it, “a single [FBI] investigation will be supportable as an exercise of a number of these authorities—i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence”—because the FBI has a role in enforcing both criminal law and “in collecting foreign intelligence as a member agency of the U.S. Intelligence Community.” For another, a counterintelligence investigation may use tools distinct from a criminal investigation. The Foreign Intelligence Surveillance Act, for example, authorizes the government to conduct surveillance for “foreign intelligence” purposes where certain statutory requirements are met and “there is probable cause to believe that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power.” A similar kind of test exists for pen registers. In a similar vein, the FBI may obtain information from internet service providers using “National Security Letters” if the Bureau meets certain statutory requirements and certifies that the records are “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” These statutes, and other comparable “foreign intelligence” authorities, require a showing that the government has reason to believe that the target is “a foreign power or an agent of a foreign power” and the information collected will be of a “foreign intelligence” nature. Critically, these tools do not require a showing that evidence of a crime will be discovered, which is the predicate for comparable criminal investigative tools contained in the Wiretap Act or the Pen Register Statute. While FISA surveillance may ultimately uncover evidence of criminal wrongdoing, each FISA application must establish that “a significant purpose of the surveillance is to obtain foreign intelligence information.”

In other words, while a run-of-the-mill FBI criminal investigation may not qualify as a “proceeding” for purposes of § 1505, a counterintelligence investigation looks a lot more like the sort of proceeding described in Kelley. In counterintelligence investigations, the agency is fulfilling a broader mandate and accordingly has broader authorities. Indeed, National Security Letters look a lot like subpoenas.

There is likewise reason to think the conduct may qualify under a related obstruction provision that is both easier to prove and comes with a harsher penalty. In 1982, Congress enacted the Victim and Witness Protection Act (VWPA). As the U.S. Attorneys’ Manual explains, the new law was intended to rework the obstruction of justice statutory scheme:

Prior to the enactment of the VWPA, the primary objects of the protection of Chapter 73 were witnesses and parties in ongoing proceedings (former 18 U.S.C. §§ 1503, 1505) and informants (former 18 U.S.C. § 1510). The VWPA reorganized and expanded the coverage of Chapter 73 and transferred most of the work that had been allocated to former 18 U.S.C. §§ 1503, 1505, and 1510 to the new sections of 1512 and 1513. In addition, the former statutory scheme was organized on the basis of the identification of the victim of the illegal act as either a witness or party. Sections 1512 and 1513 eliminate these categories and focus instead on the intent of the wrongdoer. If the illegal act was intended to affect the future conduct of any person in connection with his/her participation in Federal proceedings or his/her communication of information to Federal law enforcement officers, it is covered by 18 U.S.C. § 1512. If, on the other hand, the illegal act was intended as a response to past conduct of that nature, it is covered by 18 U.S.C. § 1513.

Notably, Higgins hails from 1981, one year prior to the statutory overhaul. There is at least some reason to think Trump’s conduct might implicate § 1512. As an initial matter, the U.S. Attorneys’ Manual concession that FBI investigations are not § 1505 proceedings is followed by this citation: “But cf. 18 U.S.C. §§ 1510, and 1512(b)(3), (c)(2).” Professor Foley’s Times piece notes that § 1510 is a narrow statute covering only bribery, but as a recent CRS Report notes, this is because of the 1982 rewrite of the statutes:

Before Congress rewrote federal obstruction of justice law in 1982, § 1510 covered the obstruction of federal criminal investigations by “misrepresentation, intimidation, or force or threats thereof” as well as by bribery. All that remains of the original proscription is the prohibition on obstruction by bribery . . . Prosecutions under subsection 1510(a) have been more infrequent since the enactment of 1512 in 1982, perhaps because § 1512 governs the obstruction of federal criminal investigations not only by corrupt persuasion such as bribery but also by intimidation, threat, deception, or physical force.

In other words, § 1512 applies to federal criminal investigations and covers conduct beyond merely bribery. The two potentially relevant § 1512 provisions cited in the U.S. Attorneys’ Manual are (b)(3) and (c)(2):

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— … (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation shall be fined under this title or imprisoned not more than 20 years, or both. (c) Whoever corruptly— ... (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

The federal circuit courts are split on whether an FBI investigation itself constitutes an “official proceeding” within the meaning of § 1512; the Ninth and Fifth Circuits say no, while the Second says yes. Furthermore, the courts haven’t been clear on whether “proceeding” should take the same meaning in §§ 1505 and 1512. The Kelley noted that it “need not decide whether ‘proceeding’ has the same meaning in both [sections], since the parties agree[d] that a parallel should be drawn between the two sections.”

Courts have broadly interpreted the conduct covered by § 1512. For instance, a D.C. district court judge wrote last year:

Defendant argues that 18 U.S.C. § 1512(b)(3) is not applicable to Defendant's conduct as set forth in the Information because a violation under that statute requires the Defendant to engage in misleading conduct toward a third person with the intent to hinder, delay, or prevent the communication to a law enforcement officer. Def.'s Resp. to Govt.'s Mem. in Aid of Sent'g at 5. As such, Defendant's argument is that he could not violate § 1512(b)(3) by directly misleading a federal law enforcement officer but rather that he must do so through a third party. The Court finds this argument is without merit. As previously mentioned, the statute requires that the defendant engage in misleading conduct toward "another person." Nothing in the statutory language appears to restrict the definition of "another person" to any non-federal law enforcement officer, and courts interpreting the provision have concluded that "another person" is commonly understood to mean "any person." See, e.g., Veal, 153 F.3d at 1245 ("As the district court found, there is no ambiguity in `another person,' which is easily and commonly understood to mean any person, regardless of whether he possessed knowledge of the commission or possible commission of a federal crime from being an eyewitness or investigating official.") . . .

In sum, it’s possible that § 1512 is the more appropriate statutory provision. It also happens to be easier to prove because it doesn’t require a “pending” proceeding (though the defendant must have contemplated the existence of some future proceeding in order to intend to obstruct it). But as Julie O’Sullivan highlights, the state of the law is a mess—predictably only in the vast array of conduct it could potentially sweep up.

All that said, the “pending proceeding” question certain makes criminal prosecution of the President—which was already exceedingly unlikely—even more unlikely. We elaborated on the reasons why you should not expect Trump to be frog-marched out of the White House any time soon in this prior analysis:

This case is not going to be prosecuted in federal court like a normal obstruction case—at least not in the first instance. Whether the President is immune from indictment during his time in office is an open question; the longstanding position of the Executive Branch is that the sitting President cannot be prosecuted. At a minimum, in this view, he has to be impeached by the House of Representatives and removed from office by the Senate first. Even if you don’t accept this position, the Justice Department under Attorney General Sessions is not going to indict the sitting president. So the immediate question is not whether this pattern of behavior—or any individual component of it—could support a prosecution and criminal conviction for obstruction of justice. It’s whether it would support an impeachment in the House and a removal vote in the Senate. . . . The critical point is that impeachment for obstruction of justice is ultimately not just a legal question; it’s also a political question, albeit a political question highly inflected by the law and often discussed in the language of the law. The boundaries of the impeachable offense are not coextensive with the boundaries of the criminal law. There are things that are not criminal that are certainly impeachable, and there are crimes that are generally regarded as too trivial to trigger the Constitution’s standard in Article II § 4 of “Treason, Bribery, and other high Crimes and Misdemeanors.” The great constitutional scholar Charles Black, in an excellent volume entitled, Impeachment: A Handbook written during the Watergate era, describes this point in vivid detail. So the real question boils down to this: Does the pattern of conduct that is emerging, in the view of a majority of the House of Representatives and a two-thirds majority of the Senate, constitute an obstruction of justice of a type that is grounds for impeachment and removal?

In other words, it’s perfectly possible that Trump’s conduct is not cognizable as a violation of § 1505 but that Congress regards it nonetheless as a gross abuse of power for purposes of the impeachment clauses. In its impeachment function, Congress may not care how courts have narrowly defined “proceeding” or how precisely the conduct at issue maps onto to any specific criminal statute. Notably, Richard Nixon’s articles of impeachment charged “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States [and] the Federal Bureau of Investigation.” The articles cite no criminal statute at all.