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Another Bomb Drops: Initial Thoughts on Trump Asking Comey to Kill the Flynn Investigation

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Helen Klein Murillo, Jack Goldsmith, Susan Hennessey, Quinta Jurecic, Matthew Kahn, Paul Rosenzweig, and Benjamin Wittes write at Lawfare:

The New York Times is reporting that President Donald Trump asked then-FBI Director James Comey to drop the FBI’s investigation into former National Security Adviser Michael Flynn. The conversation allegedly occurred in a February meeting in the Oval Office, the day after Flynn was removed from his post when it came to light that he had lied about conversations he had during the transition with Russian Ambassador Sergey Kislyak.

The revelation comes barely 24 hours after the Washington Post bombshell yesterday that President Trump had revealed highly classified information to Russian officials during an Oval Office visit.

The Times story describes a memorandum written by Comey immediately after the meeting, recording what was said for posterity. As the Times reports:

Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present—including Mr. Pence and Attorney General Jeff Sessions—to leave the room except for Mr. Comey.

Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.

Mr. Trump then turned the discussion to Mr. Flynn.

After writing up a memo that outlined the meeting, Mr. Comey shared it with senior F.B.I. officials. Mr. Comey and his aides perceived Mr. Trump’s comments as an effort to influence the investigation, but they decided that they would try to keep the conversation secret — even from the F.B.I. agents working on the Russia investigation — so the details of the conversation would not affect the investigation.
The memo allegedly reports that President Trump said to Director Comey, “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.” Trump reportedly told Comey that Flynn had done nothing wrong.

Significantly, the Times reports that not only did Comey detail this exchange in a contemporaneous memo, but also that “Mr. Comey created similar memos—including some that are classified—about every phone call and meeting he had with the president.” This was “part of a paper trail Mr. Comey created documenting what he perceived as the president’s improper efforts to influence an ongoing investigation.”

The White House has denied Comey’s account:

In a statement, the White House denied the version of events in the memo.

“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 statement said. “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 most immediate legal question is whether the President’s conduct amounts to obstruction of justice, either on its own or in combination with other actions. Lawfare writers discussed the question of obstruction of justice in some detail following the firing of Comey last week.

It is important to remember that the Times story contains only snippets of the reported Comey memo, so the analysis below is thus necessarily preliminary, based on the limited facts we have access to at this point. Much remains unknown and the specific facts that will emerge in the days to come matter a great deal.

Helen Murillo explained the basic elements of obstruction as they might apply to Comey’s firing:

Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”

An accompanying code section, 18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information” (emphasis added). This is where obstruction of justice intersects with the false statements law. If you knowingly and willfully make a false statement of material fact in a federal government proceeding, you’ve potentially violated § 1001, and when you add an objective to influence, obstruct, or impede an investigation, you’ve now possibly violated § 1505 as well. Perjury can intersect with obstruction of justice in the same way.

Under the statute, a “proceeding” can be an investigation. Section 1503 criminalizes the same conduct in judicial proceedings. So obstruction during an investigation might violate § 1505, while if that same investigation leads to a criminal prosecution, obstruction during the prosecution itself would violate § 1503. The individual also has to know that a proceeding is happening in order to violate the statute, and must have the intent to obstruct—that is, act with the purpose of obstructing, even if they don’t succeed.
Obstruction convictions are difficult to obtain. Despite broad statutory language, to obtain a criminal conviction, the government must demonstrate an attempt to “influence, obstruct, or impede” the administration of the law in a pending proceeding. As cited in the prior piece, the U.S. Attorneys’ Manual explains the requirement of proof of three elements: “(1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending.”

Here, the first two elements are abundantly clear. Assuming the Times account is correct, there was clearly an investigation, and Trump clearly knew about it. Notably, fifteen days earlier, then-Acting Attorney General Sally Yates had sat down with White House Counsel Don McGahn and informed him of her concerns over Flynn’s connections with Russian officials—including the fact that Flynn had been interviewed by the FBI. According to White House Press Secretary Sean Spicer, McGahn briefed the President and “a small group of senior advisors” following his conversations with Yates.

As Murillo wrote in the prior piece, the third element of an obstruction charge is the hardest to prove, because it depends on showing an improper motive. A criminal case would require proving that Trump acted corruptly with the specific intent of interfering with the investigation. That’s very hard when you’re dealing with the firing of an FBI director, a subject about which the President may have said all kinds of contrary things. Proving his precise state of mind beyond a reasonable doubt might be very tricky.

On the other hand, in this instance there’s at least prima facie evidence that would tend to support inferences of obstruction. According to the memo, . . .

Continue reading.

Written by LeisureGuy

17 May 2017 at 10:06 am

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