Right on cue, Comey reacted to Obama’s statement as the president surely intended. The director adopted Obama’s argument, in nearly identical language, when he announced that Clinton had been “extremely careless” but had not “intended to violate laws governing the handling of classified information.”27 Comey acceded to the president’s wishes. Yet, never once did Comey complain that Obama was interfering in, or obstructing, a potential prosecution, although the president’s intent that the case be dropped can plainly be inferred from his words.
If Obama did not obstruct justice, neither did Trump. Under the First Amendment, both were entitled to express their opinions about the respective cases and the individuals involved. Indeed, under the “vesting clause,” both presidents could have been far more aggressive in ordering an end to the probes. They would have been well within their constitutional powers to do so.
The only reason Trump has been accused of obstruction is because Comey, Democrats, and the liberal media shaped it into one of their favored anti-Trump narratives. It is part of a much larger narrative casting Trump’s unusual style as breaking the law, when he’s only breaking the establishment’s unwritten rules.
In making decisions on who should or should not be prosecuted, the FBI and DOJ have enormous latitude. So, too, does the president, who can command the direction of their investigations and prosecutions or instruct that cases not be pursued. This is a legitimate executive function derived from the “take care” clause in Article II of the Constitution, which states that the president “shall take Care that the Laws be faithfully executed.”28 Such decisions invariably involve judgment and discretion. Eugene Kontorovich, law professor at Northwestern University, made this point when he observed:
No laws are enforced 100 percent. Lots of people commit crimes; lots of prosecutors know about them and decide not to charge those crimes. Executive discretion and prioritization are part of the justice system.29
A prime example of such discretion can be found in President Obama’s executive action to shield millions of undocumented immigrants from prosecution and deportation.30 Was the president obstructing justice by actively interfering in potential prosecutions? No. While it is true that litigation ensued to reverse the president’s order, no one argued that his action to halt prosecutions constituted obstruction under the law. Whereas Obama had issued a written order directing that prosecutions be deferred or dropped, Trump merely expressed a “hope” that Flynn would be cleared. The same mainstream media and Democrats who applauded Obama for his expressed order condemned Trump for his vague and elastic comments to Comey.
Former Assistant U.S. Attorney Doug Burns dismisses the notion that Trump obstructed justice in his comments to Comey about Flynn:
The Trump statement to Comey was certainly ill-advised; however, it did not amount to obstruction of justice. First, the statute requires evidence of a corrupt intent, and nothing in the statement provides any such evidence. Second, the president can direct the Justice Department to drop a case as he is the attorney general’s boss. Last, the president can pardon Michael Flynn. As such his statement alone does not amount to obstruction of justice.31
There was no evidence the president acted “corruptly” or with an “improper purpose,” as the law of obstruction requires. Those who accused him of it either misunderstood the statutes and case law or deliberately misinterpreted them for political reasons.
Firing Comey Was Not Obstruction of Justice
President Trump’s firing of Comey did not constitute obstruction of justice for many of the same reasons that his conversation about Flynn did not rise to the level of obstruction. The president is constitutionally authorized to fire any political appointee in the executive branch of government. They report to him and serve at his pleasure.
The best evidence of this came from the words of the man who was fired. The day after he was terminated as FBI director, Comey wrote a letter to his colleagues at the bureau that stated:
I have long believed that a President can fire an FBI Director for any reason, or for no reason at all.32
Comey was correct. Under the Constitution, the president has unfettered power to discharge the FBI director or anyone else in the executive branch who was politically appointed to his or her position. Trump could have offered no reason and been constitutionally entitled to act. However, in Comey’s case, Trump had ample cause for firing him. Comey’s direct supervisor was the deputy attorney general, Rod Rosenstein. As explained in the last chapter, Rosenstein spelled out several incidents of serious malfeasance by Comey in his mishandling of the Clinton email case that more than justified the decision, and the deputy AG recommended to the president that the director be dismissed.33 So, too, did the attorney general, Jeff Sessions, who endorsed the decision.34 Trump cited these reasons and recommendations in his letter to Comey, dated May 9, 2017.35
Rosenstein’s endorsement that Comey be fired had been months in the making. In his testimony before both the House and Senate, he disclosed that he first broached the idea in a discussion with then-senator Jeff Sessions in the winter of 2016–17.36 Hence, it was not a judgment motivated by some nefarious desire to interfere in the Flynn investigation or the Russia probe. The plan had been gestating for several months and predated Trump’s conversation with Comey about Flynn. Instead, relieving the director of his duties was an effort “to restore the credibility of the FBI” because, as Rosenstein described it, Comey had “damaged public confidence in the bureau and department.”37
The ink was barely dry on Trump’s letter firing Comey when the president’s critics began assailing the move as a clear case of obstruction of justice. Trump, they proclaimed, was interfering with the Trump-Russia investigation. This was untrue, and the facts do not support the argument. Not only was the president empowered to make such a decision and did so based on good cause, but the testimony of key people confirmed there was no such interference.
In a hearing before the Senate Intelligence Committee after Comey was fired, Acting FBI Director Andrew McCabe stated, “There has been no effort to impede our investigation to date.”38 Days later, Deputy Attorney General Rod Rosenstein told Congress, “There never has been . . . any political interference in any matter under my supervision in the United States Department of Justice.”39
Comey himself disabused the notion that anyone had attempted to interfere in an FBI investigation when he responded this way to a general question about undue influence while testifying before Senate Judiciary Committee on May 3, 2017:
I’m talking about a situation where we were told to stop something for a political reason, that would be a very big deal. It’s not happened in my experience.40
That was Comey’s story before he was fired. After he was dismissed, he changed his tune and testified on June 8, that he “understood the President to be requesting that we drop any investigation of Flynn” during the February 14 Oval Office meeting.41 So which was the truth and which was a lie? It is likely that Comey’s first account, when he was still the director, was the more accurate one. Had the president tried to obstruct the Flynn case months earlier, surely Comey would have said so when first questioned by Congress about any interference in FBI investigations. Only after he was fired, as an aggrieved or disgruntled ex-employee, did Comey have a motive to smear Trump by suggesting that the president had tried to impede the probe. But how would that even be possible? Trump fired Comey, not the entire FBI. Their investigation continued regardless of who was at the helm as director.
The subject of potential obstruction was also raised in a June 2017 Senate Intelligence hearing where other Trump administration officials testified. In the wake of a Washington Post report that claimed the president tried to intervene in the Russia investigation, the director of national intelligence, Dan Coats, said, “I have never felt pressure to intervene or interfere in any way with shaping intelligence in a political way or in relation to an ongoing investigation.”42 National Security Agency director Mike Rogers
offered similar testimony. “In the three-plus years that I have been the director of the NSA, to the best of my recollection I have never been directed to do anything I believe to be illegal,” Rogers said. “I do not recall ever feeling pressured to do so.”43
Following Comey’s firing, the president sat for an interview with NBC’s Lester Holt. During the questioning, Trump referred to the Russia probe. Instantly, the president’s opponents seized upon the televised interview as irrefutable proof of obstruction. It was not. A rigorous reading of what Trump said confirms that his intent was not to interfere with or end the Russia investigation, but to place someone who was neutral and competent in charge, given that Comey had committed multiple acts of wrongdoing in his handling of the Clinton case and had also refused to tell the public the truth that Trump was not personally under investigation.
Trump emphasized that he intended to fire Comey, “regardless of the recommendation” by Rosenstein and Sessions, although their guidance and endorsement was influential:44
TRUMP: And in fact, when I decided to just do it, I said to myself—I said, you know, 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’ve won.
HOLT: But were—are you angry with Mr. Comey because of his Russia investigation?
TRUMP: I just want somebody that’s competent. I am a big fan of the FBI. I love the FBI.45
Trump went on to explain that, “as far as I’m concerned, I want that thing to be absolutely done properly.”46 He then suggested that an even longer investigation might be appropriate to uncover all the facts:
TRUMP: But I said to myself I might even lengthen out the investigation. But I have to do the right thing for the American people. He’s (Comey) the wrong man for that position.47
As the interview continued, Trump expressed his frustration that Comey had repeatedly told him that he was not personally under investigation, yet refused to make that information public by telling the truth. According to the president, Comey “said it once at dinner and then said it twice during phone calls.”48 Despite Comey’s reluctance to be honest with the American people, Trump made it clear that he never sought to halt the investigation:
HOLT: Did you ask him to drop the investigation?
TRUMP: No, never.
HOLT: Did anyone from the White House ask him to end the investigation?
TRUMP: No, no. Why would we do that?49
The president reiterated that Comey’s earlier malfeasance called into question his ability to lead any significant probe, as well as the FBI itself. “I also want to have a really competent, capable director. He’s not. He’s a showboater,” said Trump.50
The president insisted he did not ask that the Russia case be dropped and, to date, there is no evidence to the contrary.
All of this invites the question, was there anything damaging in Comey’s memos? If these government documents, taken from FBI headquarters by Comey, were the foundation for any claim of obstruction, what exactly did they contain?
For the better part of a year, the FBI and Department of Justice guarded the memos with the utmost secrecy, refusing to release them to Congress. Finally, under threat of contempt, the documents were handed over on April 19, 2018, and immediately made available to the public. The memos were notable for what they did not contain. Although Comey was quite detailed about what occurred during his meetings with the president, not once did he claim that Trump had tried to obstruct the FBI’s investigation. To the contrary, in one memo dated March 30, 2017, the president encouraged Comey to continue his investigation to determine whether anyone in his campaign collaborated with the Russians because “it would be good to find that out.”51
So where was the evidence of obstruction? If it was not found in Comey’s stolen memos and was not discerned from Trump’s interview with NBC, how could it ever be shown, much less proven in a court, that he harbored a “corrupt” or “improper purpose,” as the law of obstruction demands? The answer is that no such evidence existed. None. Like the fabricated argument of Trump-Russia “collusion,” there was no case for obstruction of justice.
If Comey is the key witness in any obstruction case, then the following exchange during his Senate Intelligence Committee hearing is likely the best evidence that neither Trump nor anyone else attempted to impede the Russian investigation:
SEN. BURR: Did the president at any time ask you to stop the FBI investigation into Russian involvement in the 2016 U.S. elections?
COMEY: Not to my understanding, no.
SEN. BURR: Did any individual working for this administration, including the justice department, ask you to stop the Russian investigation?
COMEY: No.52
Some have suggested that comments made by the president to visiting Russian officials in the Oval Office the day after Comey was fired might somehow serve as evidence of obstruction. They do not. The New York Times reported that when Foreign Minister Sergey Lavrov and Ambassador Sergey Kislyak came calling, Trump allegedly quipped, “I just fired the head of the FBI. He was a crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.”53
The statement, assuming it was accurately reported, does not prove a “corrupt” intent to dismiss Comey for the hidden purpose of halting his investigation. More plausibly, it is evidence that Trump felt pleased and optimistic that someone else would be in charge of the case who could be objective, unbiased, and “competent.”
In a desperate search for some other act of obstruction, the Los Angeles Times reported that a statement issued to the media by Donald Trump Jr. describing his Trump Tower meeting with a Russian lawyer during the campaign was untruthful and, therefore, it was being examined by the special counsel as evidence of obstruction.54 This is patently ridiculous. Let’s assume the media statement did not accurately describe the full extent of the meeting. Let’s assume it was a bald-faced lie. Lying to journalists is not, and never has been, a crime. If it were otherwise, just about every politician in Washington, D.C., would be behind bars.
However, the statement describing the meeting at Trump Tower was, at its core, accurate. Here is the relevant part:
We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.55
Both the Russian lawyer and Trump Jr. have stated that the meeting, scheduled under false pretenses, was a conversation about Russian adoptions and little more. A subsequent statement issued by the president’s son explained that the lawyer claimed to have information “that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton.” But, Trump Jr. added, “her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered.”56 Moreover, in an interview with Fox News, the Russian lawyer insisted there was no discussion whatsoever about Clinton, and she had no such damaging information about the candidate.57
Whether President Trump dictated the press statement or participated in its composition is of no legal consequence. Even if it was an attempt to cover up an effort to deceive the media, that is not a crime. The fact that a revised statement was later issued providing a more extensive and complete account of the Trump Tower meeting proves nothing other than a desire to be more forthcoming and transparent. It is not an admission that the original press release was evasive or deceitful.
There is one more argument that militates against any claim of obstruction in the firing of Comey or any other of the actions mentioned herein. It is hard to make a case for obstructing a noncrime. As a legal matter, it can be done with some jurisprudential gyrations. But from a practical and reasoned standpoint, it is difficult for a prosecutor to argue t
hat the president intended to obstruct an inquiry that he felt confident would prove his innocence. With no evidence that he ever colluded with the Russians during the campaign, the investigation of Trump was entirely without merit. If the president knew he did nothing wrong, it makes little sense that he would try to impede a probe into no wrongdoing.
It is clear that Trump felt falsely accused and wrongfully convicted in the court of public opinion. Democrats and the liberal media were relentless in banging the daily drum that Trump had engaged in all manner of illegality, despite a paucity of evidence. Beleaguered and under siege, the president implored Comey to tell the public the same truth he had been told in private—that he was not under criminal investigation. Comey, who probably thought he had the upper hand, refused to lift the black veil of suspicion. He failed to do the right thing. It is no wonder the president became exasperated with the FBI director and chose to find a replacement who could be honest, competent, and fair.
Former federal prosecutor Doug Burns is convinced there were ample grounds to fire Comey, none of which amounted to obstruction of justice:
Comey’s announcement of a no prosecution of Hillary Clinton was totally improper, as FBI officials or agents never make such prosecutorial decisions. Similarly, Comey’s factual condemnation of her was totally inappropriate. And last, his explanations of the law were both bizarre and incorrect. While the president did himself no favors in his interview with NBC’s Lest Holt, legally the Comey termination was not obstruction of justice.58
While no legitimate case can be made against Trump for obstruction, a case can be made that Comey committed crimes.
The Russia Hoax Page 22