Russia meeting revelation could trigger obstruction investigation
President Donald Trump’s Oval Office boast to Russian officials will almost certainly prompt a more immediate legal development.
May 20, 2017
President Donald Trump listens during a meeting with the National Association of Manufacturers, Friday, March 31, 2017, in the Roosevelt Room of the White House in Washington.
The new special counsel investigation into possible collusion between associates of President Donald Trump and Russia is just getting started — and it could take years to resolve.
But Trump’s Oval Office boast to Russian officials May 10 about why he fired FBI Director James Comey will almost certainly trigger a more immediate, and potentially perilous, legal development: an obstruction of justice investigation into whether the president intentionally engaged in a cover-up that warrants the filing of criminal charges, current and former Justice Department officials say.
Trump summarily terminated Comey one day earlier, just as it appeared that his FBI investigators were ramping up their investigation into the president’s associates — and possibly Trump himself. A day later, the president told Russian’s Foreign Minister Sergei Lavrov and U.S. Ambassador Sergey Kislyak that, “I just fired the head of the F.B.I. He was crazy, a real nut job.”
“I faced great pressure because of Russia. That’s taken off. … I’m not under investigation,” Trump added, according to an official White House document summarizing the meeting, as reported Friday by the New York Times.
The Times said that the White House document containing Trump’s comments was based on notes taken from inside the Oval Office, and then “circulated as the official account of the meeting.”
Renato Mariotti, a former assistant U.S. attorney in Chicago, said special counsel Robert Mueller’s team of FBI investigators will home in Trump’s comments to the Russians, in part because there is reportedly an official White House document about it, and also because it appears to reference Trump’s possible intent in firing Comey.
To prove obstruction of justice, authorities must show that someone intentionally, or “corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law” in an investigation or other proceeding.
Mariotti, who prosecuted many federal obstruction of justice case, said that according to Justice Department practice and protocol, FBI agents would be expected to move quickly to secure the White House document and any related forensic evidence that exists, including original notes and other work product used to create it.
“There is no question that the President’s comments as reported will be examined by the special counsel and his team, to determine whether or not the president had a corrupt intent in his dealings with Comey,” Mariotti said. “There is no such thing as a magic telescope into someone’s mind. So the very best evidence of a person’s intent are their own words and actions.”
One veteran Justice Department investigator said the summary account of the meeting “sounds like obstruction of justice to me.”
“It is the definition of obstruction; an effort to impede or prevent an investigation,” the investigator said.
The FBI had no comment on whether it expected to review Trump’s reported comments for possible consideration as obstruction of justice.
According to Justice Department practice and protocol, FBI agents would be expected to move quickly to secure any related forensic evidence that exists related to the Russia meeting, including original notes and other work product used to create the official document, the Justice Department official and a former prosecutor said.
Authorities also would seek to determine if recordings exist of the meeting, especially since Trump himself suggested in a tweet that his Oval Office meetings with Comey were taped.
And agents would attempt to interview “who else was in the room, to see if they can corroborate the notes,” and gain as much insight as possible into what Trump meant — and whether his firing of Comey was in any way aimed at derailing the investigation, Mariotti and the Justice official said.
“Mr. Mueller is very meticulous and we are dealing with an investigation involving the president of the United States,” Mariotti said. “So you can expect Mr. Mueller and his team to be very careful and to piece together complete and fulsome picture of the events.”
In addition to staff and administration officials, agents would want to interview Trump himself, most likely after all evidence was gathered and reviewed.
“At that point, there would be a look at whether this was a concrete effort to avoid, inhibit or interfere with the investigation,” the Justice Department official said, adding that the FBI wouldn’t shy away from investigating, and interviewing, Trump just because he is the president.
“The essence of our criminal justice system is that nobody is above the law,” the official said, speaking on the condition of anonymity because they are not authorized to speak for the Justice Department. “The fact that it allegedly occurred in the White House, and may have involved the president of the United States, is ultimately irrelevant in the analysis, and in how we do our jobs.”
The veteran Justice Department investigator, and Mariotti, said it would be virtually impossible for federal investigators to sidestep such an investigation given the publicity surrounding the president’s alleged remarks, and the evidence generated by them. They also predicted that Mueller, the by-the-book former FBI director, would insist on it.
The White House did not dispute the Times account, which capped a week of stunning revelations about Comey’s firing and the Trump-Russia investigation, and caused an uproar on Capitol Hill.
Instead, Press Secretary Sean Spicer sought to downplay its significance, saying in a statement that by investigating Trump, Comey had put unnecessary pressure on the president’s ability to conduct diplomacy with Russia on matters such as Syria, Ukraine and the Islamic State.
“By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia,” Spicer said in a statement. “The investigation would have always continued, and obviously, the termination of Comey would not have ended it.”
One government official briefed on the meeting also defended Trump, saying he was merely seeking to gain leverage over the Russian diplomats, the Times said.
Trump has denied any wrongdoing, either in his campaign’s relations with Russia, or in his firing of Comey. And he has complained bitterly that accusations of Russian influence in the campaign are false and politically motivated by Democrats trying to undermine the legitimacy of his election victory.
The Justice Department official and several former prosecutors said that it doesn’t matter what Spicer — or the New York Times — think Trump meant by the remarks because the mere fact that he made them has created the possibility that he tried to intentionally derail the Trump-Russia investigation.
That’s especially the case because Trump’s May 10 comments were just the latest of several reported instances in which he appeared to pressure Comey about the investigation before ultimately firing him.
That includes reports about how Trump summoned Comey to meetings in which he asked the FBI director to swear loyalty to him, to provide details of whether he was under investigation and to back off a probe into his former National Security Advisor Michael Flynn.
And the president himself told NBC News that his firing of Comey was linked to the investigation: “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.”
Ultimately, authorities would seek to obtain any material related to those events that could shed light on actions or comments by Trump that could be construed as obstruction, including detailed notes taken by Comey about each of his interactions with the president, Mariotti and the Justice Department official said. An FBI agent’s contemporaneous notes are traditionally accepted as evidence in a court proceeding.
For the past week, Democrats and even a few Republicans have cited those reports as evidence that Trump may have tried to obstruct justice by firing Comey. On Wednesday, Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special counsel, and gave him a broad mandate to investigate possible collusion during, and after, the election as well as any potential interference in the FBI investigation itself.
“Any one of these would be enough to suggest that Trump meant to derail the investigation,” said Elizabeth Goitein, a former Justice Department trial attorney and congressional counsel who co-directs the Brennan Center for Justice’s Liberty and National Security Program. “Taken together, they add up to a powerful case that the president of the United States attempted to obstruct justice. “
But when talking to the Russians, if Trump did indeed make reference to how Comey’s firing alleviated the “great pressure” he felt due to the investigation, it ups the ante significantly because it goes to Trump’s intent, according Goitein, Mariotti and the Justice official.
It’s “the latest and most damning evidence to emerge regarding his intent in firing Comey,” Goitein said. “There will be tremendous pressure for special counsel Robert Mueller to examine this as part of his criminal investigation.”
If investigators ultimately determined that by pressuring and ultimately firing Comey, Trump “felt that the investigation would not move forward, or would be sidelined or delayed, then it’s possible to argue that that is the intent needed for obstruction” charges, said the Justice Department official.
To this day legal scholars remain divided over whether a president can be charged with a crime.
“It’s a point that continues to be debated by legal scholars,” Mariotti said. “You bring a civil lawsuit. We can’t be sure about whether we can indict a president while he is in office. That issue is as much a political issue as it is a legal one.