In early 2017, FBI Director James Comey was a man without many friends. His decision, made in the closing weeks of the 2016 presidential campaign, to announce in a letter to Congress that the FBI was re-opening the investigation into Hillary Clinton’s use of a private e-mail server during her time as Secretary of State went against decades of FBI precedent, left him wildly unpopular with Democrats and, according to some analyses, may have thrown the election to Donald Trump.
Not that the new President – or many of his fellow Republicans – were particularly grateful. Many on the right believed Comey had either erred or acted corruptly in closing the investigation into Clinton in the first place.
So when the President fired Comey in May of 2017, there weren’t many tears shed on either side of the aisle. However, it quickly became apparent that Comey’s dismissal was deeply troubling. Evidence emerged that the President had fired the FBI Director in a ham-handed attempt to end – or at least hinder – the still-nascent investigation into Russia’s interference in the 2016 election and his campaign’s potential collaboration with those efforts.
In part three of our ongoing examination of obstruction of justice in the Mueller Report, American Legal News is looking at the role Comey plays in the Special Counsel’s report. The Special Counsel investigated the President’s behavior toward Comey and analyzed it in the context of federal obstruction of justice statutes.
Public Confirmation of the Russia Investigation
Director Comey was a significant character in the Mueller Report’s examination of National Security Advisor Michael Flynn, the investigation into Flynn and the President’s potentially obstructive behavior with regards to his former campaign surrogate. Comey had made clear that he was deeply troubled by the President’s behavior, and the authors of the Mueller Report, for their part, made clear that they found Comey’s account credible.
But Comey’s role in the larger drama of the Mueller Report and the Russia investigation didn’t end there.
On March 9, Comey briefed Congressional leaders of both parties (the so-called “Gang Of Eight”) and informed them of the existence of an ongoing FBI investigation into Russian interference in the 2016 presidential election. He would do the same thing publicly on March 20 in his testimony before the House Permanent Select Intelligence Committee. Comey, who had cleared his remarks with the Justice Department before the hearing, refused to identify any of the targets of the investigation or provide any additional details.
As chronicled in section C of the Mueller Report’s second volume, the President was “beside himself” over Comey’s testimony. In the aftermath of Comey’s testimony, the President attempted to convince members of the nation’s intelligence community to publicly state that he had no connection to Russia. This included asking Director of National Intelligence Daniel Coats to make such a statement – Coats refused, pointing out that his office had nothing to do with ongoing FBI investigations.
Coats told the Special Counsel’s office that the President hadn’t asked him to speak with Comey about the investigation. However, other staffers at Coats’ office offered different accounts, saying that Coats had told them the President expressed a desire for Coats to involve himself in the investigation in some way.
The Special Counsel’s obstruction analysis in section C, as described in Quinta Jurecic’s obstruction of justice “heat map” at Lawfare, is mixed. It’s clear there was a “nexus” between the President’s actions and an official proceeding. However, the Special Counsel was not able to determine if the President’s outreach to the intelligence community qualified as an obstructive act or if he had corrupt intent in his actions.
The Firing of James Comey
Section D of the Mueller Report’s second volume examines Trump’s decision to fire Comey. It was one of the most stunning moments of the Trump presidency, and it came just a few months into the new administration.
The President fired Comey on May 9, less than a week after Comey testified before the Senate Judiciary Committee and refused to publicly state that the President wasn’t under investigation. Comey had actually refused to provide any details of the investigation as a matter of policy, but the President was still furious.
After the news of Comey’s firing broke, the White House tried to claim that the decision came from the Department of Justice, specifically citing a memo written by Deputy Attorney General Rod Rosenstein that focused on Comey’s conduct during the Clinton e-mail investigation. Then-Deputy Press Secretary Sarah Sanders told reporters that the White House had received complaints about Comey from “countless members of the FBI.’ She later admitted to the Special Counsel that this statement wasn’t true.
However, no one believed that Donald Trump had fired Comey because it bothered him that Hillary Clinton had been treated unfairly. And the Mueller Report lays out in exhaustive detail that Trump had already made the decision to fire Comey before Rosenstein drafted his memo. Trump would later say as much in an interview with Lester Holt of NBC.
The Mueller Report’s obstruction analysis relating to Comey’s firing once again finds a clear nexus between the President’s act and an official proceeding. When it comes to the question of an “obstructive act,” the Report is, again, less conclusive. The report’s authors, rejecting the idea that the President couldn’t obstruct justice simply through the exercise of his constitutional powers, write, “Firing Comey would qualify as an obstructive act if it had the natural and probable effect of delaying or disrupting the investigation….” And the analysis points out the President’s repeated public statements criticizing the Russia investigation.
However, the analysis also says that the Comey firing would not “necessarily” have that effect, since the Russia investigation continued – and was expected to continue – under a new FBI director.
The report’s analysis of the third leg of the obstruction determination, corrupt intent, is similarly inconclusive. The report’s authors find there is “substantial analysis” Trump fired Comey because the FBI director wouldn’t publicly clear him in the Russia investigation, and the fact that the White House initially relied on the thin pretext of the Rosenstein memo “could support an inference that the President had concerns about providing the real reason for the firing….”
However, the analysis also acknowledges that there is some evidence the President believed the investigation was hurting his ability to “manage domestic and foreign affairs,” and that would not qualify as corrupt intent. The report ultimately says that the evidence is insufficient to reach any clear conclusion as to the President’s true intent.