Former FBI director James Comey says the President asked him to go easy on his former national security adviser. (AP/Reuters)
It was January 27, 2017, and US President Donald Trump and then-FBI director James Comey were having dinner alone in the White House Green Room.
They sat at a small, oval table, and were waited on quietly by two Navy stewards who entered the room only to serve food and drinks.
The dinner was awkward, according to Mr Comey, and it only got worse. The President asked him if he wanted to stay on as FBI director, adding, “I need loyalty. I expect loyalty”.
The meal was only a week after Mr Trump’s inauguration. It was followed a few weeks later by another fraught meeting in the Oval Office. Mr Comey said the President asked him to go easy on former national security adviser Michael Flynn.
Flynn had been caught by the FBI for misleading the Vice-President about his interactions with the Russian ambassador. He was forced to resign.
“I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” the President said to Mr Comey.
Of course, all of the above comes from notes taken by Mr Comey, who has since testified to their accuracy under oath. Mr Trump has denied trying to scuttle any part of the Flynn investigation.
Flynn was charged with lying to the FBI about his talks with the Russian ambassador after bugged conversations revealed he asked Russia not to overreact to sanctions imposed in the dying days of the Obama administration, because Mr Trump would soon be in office.
Mr Comey also testified that the President later asked him to “lift the cloud” over his administration’s ties to Russia and to “get out” that he was not under personal investigation.
Was Mr Trump obstructing justice? That question, and these events, are at the core of the push for the release of special counsel Robert Mueller’s full report into Russian meddling in the 2016 campaign.
“I just fired the head of the FBI. He was crazy, a real nut job,” Mr Trump told Russian Foreign Minister Sergei Lavrov 10 days later, according to a leaked White House document that was read to The New York Times.
“I faced great pressure because of Russia. That’s taken off.”
And yet in a four-page summary of the report from the special counsel, Attorney-General William Barr and his deputy, Rod Rosenstein, say there’s no case for obstruction.
That’s a hard sell in a highly partisan environment. Mr Barr is a Trump appointee, trust is in short supply, and there’s plenty of disagreement about his reasoning.
Mr Barr’s summary raises more questions than it answers
By the way, The New York Times says Mr Mueller’s report is over 300 pages long. Fox News says it’s 700 pages.
House Judiciary chairman Jerry Nadler said it was less than 1,000 pages but “very substantial”.
Brett LoGiurato tweet: “Classic editor move by Barr, cutting down the story to 0.01% of its original length”
It’s long, basically. I look forward to when it’s released, and I have to report it in a two-minute live TV cross with 20 minutes’ notice.
Anyway, according to the Attorney-General, the report did not make a judgement about obstruction of justice, instead quoting Mr Mueller directly.
“While this report does not conclude that the President committed a crime, it does not exonerate him,” he said.
Two days after receiving it, the Attorney-General concluded the evidence “is not sufficient to determine that the President committed an obstruction of justice offence”.
Obstruction-of-justice law offers room for interpretation
There are three parts of an obstruction-of-justice conviction. A judge must find, beyond a reasonable doubt, that someone:
- Acted with corrupt intent
- Engaged in obstructive conduct
- And did the first two things “with a sufficient nexus” to a court/investigation proceeding
Mr Barr’s reasoning rests on the first point.
“The special counsel investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 election,” his summary read.
Therefore, it follows that because the President is innocent of the underlying crime of collusion, he couldn’t have acted with corrupt intent to cover it up.
Daniel Hemel, a law professor at the University of Chicago, writes that’s a questionable conclusion.
“It’s black letter law that a defendant can satisfy the corrupt intent criterion for obstruction even if the defendant himself committed no underlying crime,” Mr Hemel writes, citing four illustrative cases.
Mr Barr holds a different view.
“The President’s motive in removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion,” he wrote in an unsolicited memo to the Justice Department in 2018.
Mr Hemel suggests other motives Mr Trump could have had: He might have wanted to avoid political fallout, or he may have been trying to protect family, friends and associates.
Critics have pointed to the fact that Mr Mueller never interviewed Mr Trump as evidence that his motive was not properly explored.
Did Mr Trump actually obstruct anything?
Motive is only one part of the legal question. Another is whether Mr Trump’s conduct was actually obstructive.
Mr Barr doesn’t offer any thoughts on that.
And in the end, the investigation still hummed along to a conclusion in spite of Mr Trump’s actions. He never fired Mr Mueller, right?
That said, Mr Trump has exerted immense public pressure on several key players, raising questions of potential witness intimidation:
The investigation itself, the President has publicly said, was nothing but a witch hunt and he’s constantly undermined the FBI.
Some say that’s obstruction; others see a defence in the fact that he aired his criticisms publicly. Obstruction is typically done in secret.
Democrats call for the report as Trump turns his focus to 2020
The President’s decision to fire his FBI director isn’t a crime in itself, but it could be an impeachable offense if he did it for any reason other than seeing Mr Comey as “not able to effectively lead the Bureau”, as he wrote in the termination letter.
No wonder the Democrats are still calling for the report.
CNN tweet: “Show us the report,” says House Speaker Nancy Pelosi, criticizing Attorney General William Barr for not releasing the full Mueller report. “We don’t need you interpreting for us. It was condescending. It was arrogant”
A recent CBS poll found that three in four Americans across party lines want to see it.
The House democrats have set a deadline of April 2 for the release, but Mr Barr hasn’t committed to that date.
A federal prosecutor said one of Mr Mueller’s grand juries is “continuing robustly”, meaning Mr Barr will have to sort through material that must, by law, remain classified.
Still, the Attorney-General told Mr Nadler he’d testify before the House Judiciary committee “reasonably soon”.
Meanwhile, Mr Trump is turning the media’s gaze away from the report by starting a fight on healthcare, which was the number one issue for voters during the 2018 midterm election.
Politico tweet: Reporter: Your administration is making very clear that you think the ACA is invalid… What’s your message to Americans? Trump: Let me just tell you exactly what my message is: The Republican Party will soon be known as the “Party of Healthcare”
@RealKyleMorris tweet: “President Trump: “We are going to be, the Republicans, the party of great healthcare. The Democrats have let you down.”
Tough to call that one a coincidence.