There’s a kitchen-sink quality to it as you would expect from lawyers making a defense of their client—here’s an argument, and if you don’t like it, I’ve got another. But I generally think it’s good. I don’t believe a president can commit obstruction of justice in exercising his lawful powers. He can abuse those powers, which is appropriately the subject of an impeachment process, not a criminal inquiry, and should be undertaken by Congress, not a special counsel.
Be that as it may, some of the more granular arguments in the letter strike me as persuasive. If Mueller is really going to make an obstruction case based, in part, on Trump’s “let this go” exchange with James Comey about Michael Flynn, all of this is relevant:
Even if we were to ignore the White House’s version of events and take Comey’s “understanding” at face value, Mr. Comey did not confront the President, nor did he report the “attempted obstruction.” He also did not “let this go,” and he received no further communication from the President or any other person from the White House on the matter.
Mr. Comey himself, very significantly, admitted that he did nothing in response to the so-called “direction” except make self-serving notes. He admitted he did not raise an objection with the President to what he “understood.” He did not open an obstruction investigation of the President.To the contrary, he told the President in their subsequent March 30, 2017, phone call “that we were not personally investigating the President.” Had he really understood the President to be attempting to obstruct justice, undoubtedly he would not have made that would-be false statement.
In his testimony Mr. Comey admitted that not only did he fail to confront the President, at the time he also never told the Attorney General, the Deputy Attorney General or even the FBI agents then conducting the counterintelligence investigation on collusion that he believed he had received any such direction from the President. Instead, he claimed he only told his senior FBI leadership, but did nothing to act on it. Interestingly, Mr. Comey claimed he did not tell the Attorney General because he thought that the Attorney General was going to recuse himself. While this is certainly a significant assumption by Mr. Comey and raises significant questions, it still does not justify failing to tell the DOJ about the alleged conversation — if Mr. Comey truly perceived it the way he now claims he did. And, two days after Mr. Comey was removed, the most senior member of his FBI leadership, Deputy FBI Director Andrew McCabe, contradicted Mr. Comey’s account by testifying that, “there has been no effort to impede our investigation to date.”
Again, the contemporaneous testimony of his senior colleague [Andrew McCabe], and the inaction of Mr. Comey himself, all make clear that at the time of the conversation in question Mr. Comey did not really understand the President to be attempting an obstruction of justice. Recall that Mr. Comey’s June 8, 2017, testimony (after his termination) about the conversation followed both Mr. McCabe’s testimony and Mr. Comey’s own earlier testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something … for a political reason. That would be a very big deal. It’s not happened in my experience.”
In addition, the New York Times reported that following a March 30, 2017, telephone call with the President, Mr. Comey said “that his relationship with the president and the White House staff was now in the right place. ‘I think we’ve kind of got them trained,’ Mr. Wittes said, paraphrasing what Mr. Comey told him.” On March 8, 2017, Mr. Comey told an audience at a cybersecurity conference, ‘You’re stuck with me for another 6-1/2 years,’ indicating he expects to serve the remainder of his 10-year term” — and also belying any sentiment that he was suffering under the pressure of a Presidential directive he was refusing to execute.
Also, a misinterpretation of the Lester Holt interview has entered into legend, so this passage is useful:
Because it has been so widely misreported and mischaracterized, we believe it is important to present the exchange in its entirety. What the President actually said was this:
“I was going to fire Comey knowing there was no good time to do it. 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.” The President and Mr. Holt then talk over each other for approximately a minute, before the President completed his original thought by saying,
As far as I’m concerned, I want that thing [the Russia investigation] to be absolutely done properly. When I did this now, I said I probably maybe will confuse people. Maybe I’ll expand that- you know, I’ll lengthen the time because it should be over with. It should — in my opinion, should’ve been over with a long time ago because it — all it is an excuse. 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 the wrong man for that position.
Later in the interview, the following exchange took place:
PRESIDENT: I want very simply a great FBI director.
HOLT: And will you expect if they would — they would continue on with this investigation . . .
PRESIDENT: Oh, yeah, sure. I expect that.
Is Trump guilty of impure thoughts about the Russia investigation? Yes, but that’s not a crime and it shouldn’t be a central element of a wide-ranging special counsel investigation.