'It's Falling Out Of The Trees,' Former Prosecutor Says Of Obstruction Evidence

May 17, 2017
Originally published on May 22, 2017 2:37 pm

Hours after a news report that President Trump had asked the FBI director to back away from an investigation, Democrats seized on the information to accuse the White House of a serious crime.

"We are witnessing an obstruction of justice case unfolding in real time," said Sen. Richard Blumenthal, D-Conn., a former state attorney general.

"On its face, this is a textbook prima facie case of an attempt to obstruct justice," concluded Sen. Sheldon Whitehouse, D-R.I., a former U.S. attorney. He added: "Whether there are mitigating circumstances remains to be seen."

It's far too soon to make a definitive judgment about whether any laws have been broken in connection with the president's contacts with James Comey, the FBI director he fired a week ago.

The House Oversight and Government Reform Committee has demanded memos, recordings and other materials that Comey may have prepared, with a deadline of next week. Lawmakers from both political parties said they want to hear Comey testify in public, an idea that Comey associates have said he favors. And then, there's the question of recent demands by ranking Democrats on the House oversight, judiciary and intelligence committees for any possible White House recordings, transcripts or notes memorializing Trump's side of the story.

There are multiple obstruction of justice statutes on the books. Central to them is the idea of intent or bad purpose, or what Trump may have been thinking when he allegedly told Comey in February that "I hope you can let this go." Comey associates said the president was referring to an ongoing investigation of Trump's national security adviser, Michael Flynn, who resigned a day before the conversation.

For the record, the White House has denied the president asked Comey or anyone else "to end any investigation. ... The President has the utmost respect for our law enforcement agencies, and all investigations."

And in a tweet Wednesday, Donald Trump Jr. defended his father.

Longtime Washington defense lawyer Robert Luskin agreed.

"I don't know why people are getting spun up about obstruction here," Luskin said. "I call prosecutors every day and ask them to stop [messing] with my clients and that's not obstruction of justice. The act has to be done corruptly. In the absence of other indicia where you can infer corrupt intent, you could never prove that case."

On their own, the words "I hope you can let this go" are likely not enough to trigger a criminal charge for obstructing justice. But other legal experts said investigators would consider a series of interactions among the president, the FBI and the Justice Department about the Flynn investigation and a broader counterintelligence probe into Russian interference in the 2016 election.

"My view is that there are a lot of pieces coming together," said Peter Zeidenberg, a former public corruption prosecutor. "Any one of these facts in isolation may be problematic but may not be sufficient. But when you add them all up, you have a very plausible obstruction of justice case, I think."

Any investigation would pay close attention to the timeline. In January, only days after the inauguration, then-acting Attorney General Sally Yates had informed Trump's White House counsel that Flynn had been interviewed by the FBI as part of an active investigation. Yates was fired soon after because, the White House said, she refused to defend the president's travel ban in court.

Flynn left his post in February after media reports that he misled the vice president about his contacts with Russia. The following day, The New York Times reported, Trump asked Vice President Pence and Attorney General Jeff Sessions to leave a national security meeting so Trump could speak with Comey alone. That's when, Comey later wrote, the president had asked him to ease off Flynn.

NPR asked a Comey associate this week why the FBI director felt the need to take "very detailed" notes memorializing the conversation. "He was concerned," said the associate, who spoke on the condition of anonymity. Not long after Comey put that exchange with Trump in writing and after the FBI director told lawmakers the investigation of Russian interference and possible ties between Russia and the Trump campaign was active, Comey was fired.

The vice president and two spokesmen for the White House said Comey was removed from office on recommendations from Justice Department leaders, who were unhappy with his handling of the Hillary Clinton email investigation in 2016.

But the president himself later told NBC News: "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 have won.' "

Trump himself is helping investigators put all of those pieces together, through interviews, tweets and offhand comments to reporters, said Zeidenberg.

"It's falling out of the trees, the evidence," he said.

Defenders of Trump have been signaling they may attempt to turn the spotlight back on Comey, asking why the former FBI director didn't blow the whistle or quit after the February conversation with Trump. They're also asking whether Comey memorialized any other conversations during the Obama presidency or whether he only decided to take notes about Trump.

Two Comey associates told NPR that the former FBI leader is confident in his assessments and willing to tell lawmakers and the public why he conducted himself the way he did. Those associates said despite Trump's tweet suggesting he had "tapes" of his conversations with Comey, the White House has produced no such evidence. And even if it did, they said, Comey would come out for the better.

To lawyer Luskin, the talk of criminal charges misses the point. "You can have a grotesque abuse of authority that renders somebody unfit to serve, but it's not a crime," he said. Framing political crises as law enforcement matters "has the effect at the end of the day of leaving people with less respect for the legal process than before."

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