How can a president obstruct justice when he did not know there was any justice to obstruct?
For more than a year, Donald Trump’s foes have pinned their impeachment hopes on the idea that the president obstructed justice when he allegedly told then-FBI Director James Comey in February 2017 to “let this go.” Comey claims that remark was about Michael Flynn, Trump’s former national security advisor, who had just been forced to resign amid allegations he lied about his conversations with the Russian ambassador during the transition.
The widespread (unconfirmed) assumption, then and now, is that Flynn was under some kind of investigation and that Trump’s off-the-cuff, vague remark (which the president denies) is evidence he was pressuring Comey to drop the case—and therefore obstructing justice.
Although Flynn did meet with FBI investigators in January 2017 (without a lawyer present and without notifying the White House), it is unclear whether Flynn was the subject of a formal investigation or the agency was simply looking for clarification about the conversations.
But a letter written by Trump’s lawyers to Special Counsel Robert Mueller and leaked over the weekend to the New York Times now reveals that the Justice Department refused to give a direct answer about whether Flynn was indeed under investigation at the time. According to the letter, a private meeting between Trump’s personal lawyer and then-acting Attorney General Sally Yates on January 27, 2017, went down like this:
Among the issues discussed was whether dismissal of Flynn by the President would compromise any ongoing investigations. Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn.
Therefore, Trump’s lawyers argue, there “could not possibly have been intent to obstruct an ‘investigation’ that had been neither confirmed nor denied to White House Counsel, and that they had every reason to assume was not ongoing.”
So why didn’t Yates answer the question? As president, Trump was entitled to know the answer. (Apparently, Yates was A-OK with divulging classified information allegedly intercepted through surveillance of the Russian ambassador, details that were also illegally leaked to the news media by nine Justice Department officials, but suddenly clammed up when asked by the president’s lawyer if his national security advisor was under investigation.) Yates did not raise any illegality by Flynn, only that the optics looked bad and she feared Flynn, a three-star general, would be subject to “Russian blackmail.”
But Yates’ non-answer was part of the Obama Justice Department’s strategy to withhold crucial information from the president, his team, and Congress—either as a way to publicly shape the emerging Trump-Russia narrative; conceal its own misdeeds from Congress; or willfully mislead the president.
Time after time, Comey, Yates, and James Clapper failed to notify Trump that Flynn was under investigation, which seems particularly egregious since we now know that Flynn was one target of the FBI’s counterintelligence investigation into Trump-Russia election collusion beginning in the summer of 2016.
In an interview last week, Clapper admitted he did not inform candidate Trump about the threat of Russians infiltrating his campaign through campaign surrogates. “It wasn’t my place to do that,” the former director of national intelligence claimed. “I was reporting to the then-government, the executive branch policymakers. For me to pick up the phone and call a political candidate would not have been appropriate.”
But that also would have been unnecessary; Clapper might simply have informed Trump during a security briefing his office conducted with the Republican presidential nominee on August 17, 2016. ABC News reported that “career staffers from the Office of the Director of National Intelligence will be leading the briefing, which is expected to cover major threats and emerging concerns around the world.” Contrary to his current stance, Clapper said at the time there was “no concern in the U.S. intelligence community about providing classified information to either of the presidential candidates.”
In attendance at that briefing? Michael Flynn. And Flynn continued to sit in on subsequent intelligence briefings during the transition, yet Clapper never raised any concerns about Flynn with Trump, even after he was elected.
Neither Clapper nor Comey alerted Trump about an investigation into Flynn during their two-hour security briefing with the incoming president on January 6, 2017. Instead, Comey was extremely concerned with helping CNN get a scoop about the Steele dossier and alerting the president about the most salacious allegations in the document (although he did not bother to tell Trump the dossier had been funded by the Democratic National Committee and the Clinton campaign.)
Based on his memos, Comey did not inform his new boss about the Flynn probe during their multiple encounters in January and February 2017, even when they were discussing Flynn. At their private dinner on January 28, Trump allegedly criticized his new national security advisor, telling Comey that he thought Flynn had serious judgment issues. “I did not comment at any point during this topic and there was no mention or acknowledgment of any FBI interest in or contact with General Flynn,” Comey wrote.
So, even in his private memos, Comey did not refer to the Flynn matter as an investigation. This again raises the question: Why didn’t Comey tell Trump about Flynn? He had just directed his agents to interview Flynn four days prior; how could this not be the one and only topic of conversation between the two? Clearly, Trump did not know about the Flynn interview since there is no indication he discussed it with Comey.
Flynn resigned on February 13. The next day, Trump and Comey met again, and this is when the president allegedly told Comey that Flynn “misled the Vice President but didn’t do anything wrong in the call.” He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. I hope you can let this go.” It’s anyone’s guess what Trump meant. He could have been speaking in general terms, suggesting the agency should cease looking into whether Flynn lied to Pence or the public. (Neither is a crime.)
In congressional testimony in 2017, Yates, Comey, and Clapper repeatedly refused to answer questions about the Trump-Russia collusion scheme—the Flynn matter in particular—under the guise of “classified” protections. When asked several questions about the Flynn case by the Senate Judiciary Committee in May 2017, Yates would not answer. She declined to confirm whether there was a FISA warrant on Flynn. Comey also would not identify publicly which Trump campaign associates were under investigation during a number of congressional hearings last year. (It wasn’t until Trump’s tweet about Trump Tower being “wiretapped” that Comey revealed the counterintelligence probe to the House Intelligence Committee in March 2017.)
So how exactly did Trump obstruct justice when it appears that none of the top law enforcement or intelligence officials at the time alerted him that Flynn was under investigation? Isn’t it the duty of the head of national intelligence or the FBI to inform the incoming president that a close advisor—someone privy to classified information, who will help shape critical foreign policy—is under suspicion for cozying up to an international foe? Set aside the political chicanery: Did this potentially jeopardize national security?
Why all the secrecy?
There may have indeed been obstruction of justice related to the Flynn case. But it wasn’t because of Trump.
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