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Free speech makes all kinds of people uncomfortable.

A. Barton Hinkle writes:

Pity the poor snowflakes—so sensitive they must be shielded from speech that might hurt their tender feelings.

Campus liberals? Nope. We’re talking about supposedly serious grown-ups, including some veterans and Virginia Rep. Rob Wittman (R).

Monday evening Wittman met with a group of tea party activists at American Legion Post 90 in conservative Hanover. Eugene Truitt—the post commander and an Air Force veteran—asked Wittman when Congress would act on a flag-desecration bill. Wittman said it could happen soon: “I continue to push the leadership to have it come to the House floor,” he said. “I do think it’s worthy of debate about what are the limits of freedom of expression under the First Amendment.”

Of course he does. Why should he be any different?

Last year Donald Trump tweeted a suggestion that anyone who burns the flag should face “consequences—perhaps loss of citizenship or year in jail!” More than 213,000 people liked the tweet. Some veterans spoke favorably of the idea. (At other times, other veterans also have vigorously opposed it.)

View this article.

Pvt. Chelsea Manning was freed from military prison this morning, having served seven years of a 35-year sentence for leaking hundreds of thousands of military documents and diplomatic cables in 2010 to WikiLeaks.

She’d probably still be there if President Barack Obama had not extended mercy right before leaving office and commuted her sentence. Obama’s 11th hour kindness comes at the end of an administration that viciously went after leakers.

It’s been so long since Manning’s leaks and so much has happened since then that it’s easy to forget what exactly it is she released. Probably the significant leak that most people still might remember was what was known as the “collateral murder” video, which showed American military helicopters firing on a group of civilians in Baghdad. Two of them were reporters for Reuters, and apparently the helicopter pilots mistook their cameras for guns. The reporters (and others) died, and Reuters struggled to get information about what actually happened.

Manning exposed a lot more of the serious consequences of post 9/11 military interventions and even other important issues of government corruption—not just from the United States either. Multiple media outlets (including The New York Times and The Guardian) reported the contents of many of these documents. A lengthy list of information governments were keeping secret (and really shouldn’t have been) exposed by Manning can be read through here, compiled by Greg Mitchell, who wrote a book on Manning’s case and trial with Kevin Gosztola.

Over at The New York Times, Charlie Savage notes that Manning essentially pioneered what would become a small trend of mass document dump leaks. She’s the reason why we know what WikiLeaks is, honestly. And it’s worth wondering if we even would have had an Edward Snowden without the precedent Manning’s willingness to release this information at great risk to herself. Also an important reminder: Yes she was convicted of several espionage-related crimes, but she was acquitted of charges of “aiding the enemy.”

Manning will apparently be keeping a low profile for a little while. She was notably treated terribly in custody, both before she was even convicted and afterward. After her conviction she announced her gender transition and name change from Bradley to Chelsea. She complained that the military wasn’t very accommodating of her transition and even attempted suicide. There’s obviously going to be a bit of an adjustment period. But she did tweet/Instagram out a picture of her first steps after release.

Here’s an interesting reminder from 2013—Ron Paul said Manning was more deserving of the Nobel Peace Prize than Obama was:

“While President Obama was starting and expanding unconstitutional wars overseas, Bradley Manning, whose actions have caused exactly zero deaths, was shining light on the truth behind these wars,” the former Republican presidential contender told U.S. News. “It’s clear which individual has done more to promote peace.”

It’s worth paying attention to the importance of whistleblowers as the Justice Department announces new efforts to find and prosecute the leakers within President Donald Trump’s administration. Given the extremely frequent occurrences of leaks within the White House and the administration as a whole, one wonders if there will be anybody left there if the DOJ succeeds.

The attorney general’s order to prosecutors to seek maximum sentences in drug cases is wrongheaded.

John Stossel writes:

President Trump’s attorney general, Jeff Sessions, ordered federal prosecutors to seek maximum penalties for drug-related crimes.
This is both cruel and stupid.

It’s cruel because Session’s 5,000 prosecutors must now push for long jail sentences even for people who pose no violent threat and for some who are utterly innocent.

It’s stupid because it will cost America a fortune but won’t make us safer.

The U.S. already locks up more people than any other country. We have 4 percent of the world’s population but more than 20 percent of the world’s prisoners.

This happened partly because of bad reporting by people like me. Decades ago, my colleagues and I made people more terrified of crime than they need to be, by covering all the grizzly details of local crimes.

View this article.

The single-payer health care plan that cleared the lower chamber of New York’s state legislature on Tuesday would require massive tax increases to double—or possibly even quadruple—the state’s current annual revenue levels.

The state Assembly voted 87-38 on Tuesday night to pass the New York Health Plan, which would abolish private insurance plans in the state and provide all New Yorkers (except those enrolled in Medicaid and Medicare) with health insurance through the state government. The same proposal cleared the state Assembly in 2015 and 2016, but never received a vote from the state Senate.

The bill might get a vote in the state Senate this year—for reasons that I’ll get into a little later—but the real hurdle for New York’s single-payer health care plan, like similar efforts in other states, is a fiscal one.

New York collected about $71 billion in tax revenue last year. In 2019, when the single-payer plan would be enacted, the state expects to vacuum up about $82 billion. To pay for health care for all New Yorkers, though, the state would need to find another $91 billion annually.

And that’s the optimistic view. In reality, the program is likely to cost more—a lot more.

Gerald Friedman, an economist at UMass Amhearst and longtime advocate for single-payer health care, estimated in 2015 (when the New York Health Act was first passed by the state Assembly) that implementing single-payer in New York would cost more than every other function of the state government. Even if New Yorkers benefit from an expected reduction of $44 billion in health spending, which Friedman says would be the result of less fraud and less administrative overhead, the tax increases would cancel out those gains.

To pay for the single-payer system, Friedman suggested that New York create a new tax on dividends, interest, and capital gains that would range from 9 percent to 16 percent, depending on how much investment income an individual reports, and a new payroll tax that would similarly range from 9 percent to 16 percent depending on an individual’s income.

It was a similar prescription for massive tax hikes that sank Vermont’s experiment with single-payer health care in 2014. Funding it would have required an extra $2.5 billion annually, almost double the state’s current budget, and would have required an 11.5 percent payroll tax increase and a 9 percent income tax increase. Voters in Colorado rejected a proposed single-payer health care system when they found out how much it would raise their taxes, and efforts to pass a single-payer plan in California (being championed by U.S. Sen. Bernie Sanders, the Vermont progressive) are facing similar financial troubles.

Back in New York, a second analysis of the single-payer health care plan, suggests that Friedman’s projections significantly underestimate the cost of single-payer in New York (while overstating the savings).

According to the Foundation for Research on Equal Opportunity, a Texas-based free market think tank, the annual price tag for the New York Health Act could be as high as $226 billion. In other words, it would require quadrupling the current tax burden in New York.

“While the New York Health Act would expand coverage to the uninsured in the Empire State, it would do so at a staggering cost that would drive hundreds of thousands of jobs out of the state,” wrote Avik Roy, who authored the FREOPP study. “The resulting economic crash would cause far more harm for lower-income New York residents than they would gain from acquiring state government-run health insurance.”

The gains would be quite limited, as Roy points out. In 2014, only 8.7 percent of New York’s population lacked health insurance. Transitioning to a single-payer system would disrupt coverage for millions of people—potentially forcing them to find new doctors and accept coverage that differs from what they would otherwise choose—in the name of extending coverage to that group of uninsured. Providing health insurance to those who cannot afford it is a noble goal, but there are less disruptive, less expensive ways to pursue that goal, Roy argues.

Despite Friedman’s promises of savings from less fraud and fewer administrative costs, the FREOPP study suggests that both costs would increase, as has historically been the case in government-run health care programs. (Read the rest of Roy’s detailed analysis here.)

Regardless of who is correct, one thing is clear: The New York Health Plan will be devestatingly expensive for the state, and for anyone who lives or works there.

Setting aside the important policy questions for a moment, the politics of passing single-payer in New York’s state Senate could get really whacky.

There are 63 seats in the upper chamber, so 32 votes are necessary to get anything passed. Right now, no one has 32 votes. Republicans hold 31 seats and Democrats hold 31, with one vacant seat in a heavily Democratic district set to be filled with a special election on May 23. It might seem like that would give Democrats the majority they need. But Senate Democrats are split into three factions, one of which—the Independent Democratic Conference, which has eight members—is part of the majority coalition supporting Republican leadership in the chamber.

Assuming there will be no Republican votes for it, passing the single-payer bill in the state Senate would require getting all Democrats to vote “yes,” despite the ongoing schism between the mainstream Democrats and the more moderate IDC members. There’s at least a pretty good chance that moderate Democrats will take a look at the cost of the health care plan and decide they can’t stomach it. The question is whether they will have a more powerful incentive to distance themselves from Republicans—either because of Trump’s down-ballot toxicity or because of the GOP’s floundering health care effort at the federal level, or for any other reason—and throw away an oddly compelling experiment in legislative politics in the process.

State Sen. Jeffrey Klein (D-34), the head of the Independent Democratic Conference, told The Huffington Post that he would support the single-payer plan because it would provide “peace of mind” for New York residents.

Doubling, or quadrupling, his constituents’ taxes might not have the effect that Klein thinks it will, but that’s between him and the people who elect him. There’s no timetable for the state Senate to take up the bill.

As a senator, Jeff Sessions helped kill bipartisan legislation that would have made federal drug penalties less mindlessly draconian. As attorney general, he seems determined to make those penalties as disproportionate as possible, writes Jacob Sullum. Last week Sessions instructed federal prosecutors to pursue the most serious provable charges without regard to culpability or dangerousness.

That policy, announced in a memo last week, reverses a Justice Department initiative that sought to spare low-level, nonviolent drug offenders the five-, 10-, and 20-year minimum sentences that are supposedly aimed at ringleaders and kingpins. The shift, writes Sullum, signals a return to unfair, ineffective drug policies that have been rightly repudiated by politicians across the political spectrum.

View this article.

John McNesby, president of the Fraternal Order of Police in Philadelphia, called civil rights attorney Larry Krasner’s candidacy for district attorney “hilarious” in February. But last night Krasner won the Democratic nomination, earning 38 percent of the vote, almost twice as much as his next nearest opponent in a 7-way race that saw a turnout 50 percent higher than 2009, the last time the contest was without an incumbent.

“I hope he has a good night,” Krasner told reporters when asked if he had anything to say to McNesby after his primary victory.

Krasner’s victory (in a city where Democrats outnumber Republicans 7 to 1) and the enthusiasm illustrated in the increased turnout represent a dramatic shift from the kind of “tough on crime” and “law and order” politics that have historically played well in Philadelphia, from Frank Rizzo to Lynne Abraham, the four-term Philly district attorney dubbed the “deadliest DA.” for the frequency with which she sought the death penalty, and who left office in 2010.

Abraham’s zeal for the death penalty came despite Pennsylvania executing just three people since the re-instatement of capital punishment in 1976, none of whom were prosecuted while she was DA.

The waste of resources ($2 million a year to keep 200 inmates on death row, Krasner told C.J Ciamarella in an April interview) on this kind of symbolic tough on crime hard line was one of the points made during Krasner’s campaign.

Asked about whether the campaign was worried about the FOP working to defeat them in November, Mike Lee, the campaign chair, told Reason that “as citizens, we’re always concerned how the FOP spends its resources to influence politics, but you can rest assured that Larry’s record of standing up against the FOP for the last 30 years will continue through November and the future, were he to be elected.”

Krasner’s campaign hit on a range of criminal justice reform issues, including ending mass incarceration, discontinuing cash bail, reducing the use of asset forfeiture and preventing seized loot from funding the DA’s office.

Krasner worked as a public defender in Philadelphia for six years, including two at the federal public defender’s office, before opening a private practice focused on criminal defense and police brutality in 1993. His campaign was supported by a coalition of activists, grassroots groups, the ACLU, and other organizations, some of which he’s defended.

It was also backed by Philadelphia Justice and Public Safety, a super PAC funded by Georg Soros, which spent $1.45 million on the campaign, including a massive ad buy in late April that had some of the other candidates respond with negative ads portraying Krasner as unsympathetic to crime victims.

A number of Soros-backed reform-minded district attorney’s candidates have won elections in the last year or so, including the prosecutor who defeated Angela Corey in Florida, but Krasner dismissed questions about Soros’ influence on the election.

“The reality is George Soros wasn’t there 30 years ago when I came to the opinion that the death penalty was wrong, when I was representing protesters for exactly the same ideas that are part of my platform,” the Democratic nominee told reporters. “No disrespect to Mr. Soros, who I have never met, or to his organization, but the bottom line is I’ve held these views for a long time and I’ve shown throughout my career that I mean them,” Krasner said, calling himself “humbled, honored, and lucky” to be the Democratic nominee for DA.

“We’re going to move things directly towards justice, we’re going to move on more of a prevention model, ” Krasner told reporters when asked how his district attorney’s office might look if he wins the general electionn. “We’re going to remember that the district attorney’s office does not exist in isolation and that where there is unnecessary incarceration, it necessarily destroys schools, and it destroys the rehabilitation of people of the medical condition of addiction, and it destroys individual families and neighborhoods in ways that are also destructive of the economy and it goes on and it goes on.”

Krasner told reporters he believed many police officers agreed with his views.

“I think everybody realizes that the vast majority of police officers in Philadelphia are really good people who got into this job because they want to do justice,” Krasner said. “Like me, they hate bad police officers, and they need the backing of law enforcement to make sure that the good police officers are promoted, that the good officers have room to do their jobs, that the good police officers are safe, and that the bad police officers who endanger them and who cause there to be disrespect and a rift between police and the community are out of the way.”

Among his supporters, the smart justice campaign director for ACLU said the group reached out door-to-door to 11,000 members in the city, while Lev Hirschhorn of Reclaim Philly told Reason his grassroots group, formed by Bernie Sanders volunteers after the 2016 presidential primary, knocked on 60,000 doors and talked to 12,000 voters, including 25,000 in the last four days.

At the end of his campaign, Krasner responded to the description of him as a kind of “Bernie Sanders” of Philadelphia, telling The Intercept that he did feel like “the Bernie in the race.”

“Ain’t nobody perfect but neither am I, so I think it’s great. They stood for change from the outside,” Krasner told The Intercept. “When we look back, we have to admit that the old Vermont Jewish socialist septuagenarian would have won. Because he did represent an outside perspective that got channeled in the worst way towards Donald Trump.”

Hirschhorn said his group encouraged Krasner to run after he represented them when they were arrested while protesting. “We knew that this was the guy who should be the next district attorney, and we told him that, and then he ran.”

The Reclaim Philly organizer also told Reason he believed Donald Trump had an influence on the election.

“People saw that Jeff Sessions was attorney general and knew that we needed something different in Philadelphia,” he said. “So we voted for Larry Krasner.”

The current district attorney, Seth Williams, was indicted on federal bribery and corruption charges in March.

The Mormon Church is making the Boy Scouts of America look mentally woke, Sarah Rose Siskind writes:

The Boy Scouts is an institution more wholesome and more American than a Norman Rockwell painting of a puppy saluting an American flag. And when the Boy Scouts don’t give a damn about that puppy’s sexual orientation, we know we’re making progress as a society.

The Mormon Church, on the other hand, has taken a partisan stance, forgetting the prime objective of Boy Scouts. No, not being prepared, loyal, trustworthy or helpful. The duty of every scout is to wantonly light shit on fire. Gay or straight, transgender or cis, all boy scouts are united in their pyromania.

View this article.

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it’s not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder’s directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder’s memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

“The promise of Smart on Crime is showing impressive results,” Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. “Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders.”

Counterintuitively, however, the defendants whom the USSC describes as “drug offenders receiving mandatory minimums” include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered “substantial assistance” or qualified for the statutory “safety valve.”

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo’s possible impact. In fiscal year 2012, Hofer found, “6,780 defendants convicted under drug statutes carrying a mandatory minimum penalty appeared to meet the memo’s measurable criteria,” but “most of these already receive[d] some form of relief from the mandatory minimum penalties.” All but 868 of those defendants were already eligible for relief, and judges gave 467 of them sentences longer than the mandatory minimums, which suggests the new rule would not have helped them.

In addition to 401 qualifying defendants otherwise ineligible for relief who “had drug statutory minimums that were higher than the otherwise applicable guideline minimums,” Hofer counted 129 who “had statutory minimums lower than the guideline range and received the maximum downward departure or variance possible prior to the memo.” He said “these defendants seem likely to have received greater reductions if the limitation on judicial discretion were removed.” That’s a total of 530 defendants who “would likely have received a lower sentence if the Holder memo had been in effect in FY 2012.” Hofer’s analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder’s memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. “With the directive not to slam low-level drug defendants,” says University of California at Irvine criminologist Mona Lynch, “there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases.”

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

“The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the ‘drug war’ mentality of the 1990s in many federal jurisdictions,” says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. “Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission.”

Douglas Berman, a sentencing expert at Ohio State’s Moritz College of Law, argues that the general message sent by Holder, and now by Sessions, is more important than the details of their instructions. “The tone/attitude of DOJ ultimately matters even more than the particulars of the memo,” Berman says. “Things got a lot more lenient during Obama’s second term in part because a signal was coming from everyone that federal prosecutors should be a lot more lenient, and the Holder memo was most essential piece of this story for prosecutors. Things are likely to get tougher during Trump’s first term, but how much tougher is going to depend a lot on whether others formally and informally jump on the toughness bandwagon.”

• The New York Times reported Tuesday evening that a memo from newly unemployed FBI Director James Comey claims President Trump asked him, in private, to drop an investigation into former National Security Adviser Michael Flynn. A statement from the White House disputed this:

  While the President has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the President has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn. The President has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the President and Mr. Comey.

• The classified info that Trump may have revealed to visiting Russian officials last week was allegedly provided by Israel. Russian President Vladimir Putin has volunteered to provide U.S. lawmakers with a record of the meeting.
• Northwestern University scientists say their 3D-printed ovaries are a success in mice.
• Chelsea Manning was released from military prison this morning, after serving seven years of the 35-year sentence she received for leaking government documents to WikiLeaks. Barack Obama commuted her sentence before leaving office in January.

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The claim that Donald Trump is guilty of obstructing justice suddenly looks more plausible in light of the report that the president asked then-FBI Director James Comey to drop his investigation of former National Security Adviser Michael Flynn. But it still would be hard to make that charge stick in federal court (although it would be easier in impeachment proceedings, where Congress decides how much evidence is enough). The chief obstacle might be that Trump is too ignorant to be guilty.

The U.S. Code includes more than 20 provisions dealing with obstruction of justice. The most appropriate one in this context seems to be 18 USC 1505, which makes it a felony to “influence, obstruct, or impede the due and proper administration of the law,” either “corruptly, or by threats or force, or by any threatening letter or communication.” The provision covers “any pending proceeding…before any department or agency of the United States,” which according to the U.S. Court of Appeals for the D.C. Circuit includes investigations. The appeals court rejected the argument that “§1505 applies only to adjudicatory or rule-making activities, and does not apply to wholly investigatory activity.”

On the face of it, Trump’s actions might fit the description of this offense. He and his spokesmen have offered shifting, often contradictory, and sometimes plainly phony explanations for his decision to fire Comey last week. But in his May 11 interview with NBC News, Trump admitted that the FBI’s investigation of Russian meddling in the presidential election, which includes the possible involvement of the Trump campaign, was on his mind. “When I decided to just do it,” he said, “I said to myself…this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should have won.” But at the same time, Trump insisted that he wants the investigation, which he slammed as a “taxpayer-funded charade” the day before he sacked Comey, to proceed.

Although Trump clearly has the constitutional authority to fire the FBI director, even legal actions can qualify as obstruction if done “corruptly,” i.e. “with an improper purpose, personally or by influencing another.” But proving that Trump specifically intended to impede the FBI investigation when he dismissed Comey would be tricky. In all likelihood, Trump had a mix of motivations, including (by his own admission) irritation at the investigation of ties between Russia and his associates but also his feeling that Comey was too easy on Hillary Clinton, that he was insufficiently enthusiastic about pursuing leakers, that he was disloyal in contradicting Trump’s claim that Barack Obama tapped his phones, and that he was rude to say he feels “mildly nauseous” about the possibility that his handling of the Clinton investigation helped Trump win.

“Obstruction of justice cases often come down to whether prosecutors can prove defendants’ mental state when they committed the act,” notes New York Times reporter Charlie Savage in a legal explainer he updated yesterday in light of the latest revelation. “It is not enough to show that a defendant knew the act would have a side consequence of impeding an investigation; achieving that obstruction has to have been the specific intention.”

The motive for Trump’s alleged intercession on behalf of Flynn, one of the associates whose ties to Russia are a matter of interest to the FBI, seems much clearer. According to a description of notes by Comey that was shared with The New York Times and NBC News by two people who claim to have read them, Trump asked Comey to stick around after a national security meeting on February 14, the day after Flynn was forced to resign because he had lied about his contacts with Russian officials. “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump reportedly told Comey. “He is a good guy. I hope you can let this go.”

The White House denies this account of Trump’s conversation with Comey. But if the contemporaneous memo described by the Times and NBC exists, it would be pretty strong evidence that the White House is (once again) lying. Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight Committee, wants to see the document, along with Comey’s written accounts of other conversations with the president. In a letter he sent to Acting FBI Director Andrew McCabe yesterday, Chaffetz notes that such memos would “raise questions as to whether the president attempted to influence or impede the FBI’s investigation.”

Sen. Angus King (I-Maine) went further, saying the reported conversation “certainly appears to meet the definition in the [obstruction] statute.” Rep. Ted Deutch (D-Fla.) was even surer. “Asking FBI to drop an investigation is obstruction of justice,” Deutch tweeted yesterday. “Obstruction of justice is an impeachable offense.”

It’s not clear whether McCabe, who last week told the Senate Intelligence Committee “there has been no effort to impede our investigation to date,” knew about the alleged conversation regarding Flynn. But even assuming the account is true, proving that Trump acted with the requisite criminal intent might be difficult, especially since it is entirely plausible, given what we know about the president’s ignorance of how the federal government works, that he did not realize his attempt to help Flynn was improper. If so, it is hard to see how he could have acted “corruptly,” as the statute’s mens rea element requires. The problem here is similar to the challenge of characterizing Trump’s myriad misstatements. Is it a lie if he thinks it’s true? Is it a crime if he does not realize he’s breaking the law?

“I do not believe that our president sufficiently understands the nature of the office that he holds, the nature of the legal constraints that are supposed to bind him, perhaps even the nature of normal human interactions, to be guilty of obstruction of justice in the Nixonian or even Clintonian sense of the phrase,” writes New York Times columnist Ross Douthat. He has a point. Someone who understood that firing Comey could be construed as obstruction of justice would not have broadcast his irritation with the Russia investigation the day before or so casually admitted afterward that it was a factor in his displeasure with Comey. Someone who understood that asking the director of the FBI to lay off Flynn could be construed as obstruction of justice never would have asked.

“It is a child who asks the head of the FBI why the rules cannot be suspended for his friend and ally,” Douthat says, and a child “cannot really commit ‘high crimes and misdemeanors’ in any usual meaning of the term.” But that determination is ultimately up to Congress, which needn’t worry about the legal niceties that can make a crucial difference in criminal court. Obstruction of justice figured prominently in the articles of impeachment against Richard Nixon and Bill Clinton. At that point (which seems quite distant for Trump right now), obstruction is whatever 67 senators say it is.