- © AFP Brendan Smialowski
If there is one thing the White House has sought to hammer home with regard to FBI investigation surrounding Russia’s meddling in the election, it is that President Donald Trump was not a subject of the probe.
The point was so important to Trump that he repeated it in his termination letter to former FBI Director James Comey.
“I greatly appreciate you informing me, on three separate occasions, that I am not under investigation,” he wrote.
When Comey told Congress last week that he had, in fact, confirmed to Trump on at least two separate occasions that he wasn’t under investigation, Trump and his allies felt “vindicated,” even though the investigation into his campaign team was ongoing. And they continued to rail on “innuendo” that the president’s interactions with Comey had been unethical or illegal in any way.
But when The Washington Post reported on Wednesday night that Trump was, in fact, under criminal investigation by special counsel Robert Mueller for possible obstruction of justice, the talking points circulated by the Republican National Committee did not dispute the accuracy of the report. Neither did Trump’s lawyer, Mark Kasowitz.
That is at least partly because, according to Axios and The Daily Beast, Trump’s own aides and people close to him know that Comey’s version of events – Trump asked him for loyalty, to back off the investigation into Michael Flynn, and to announce publicly that Trump himself was not under FBI investigation – is likely accurate.
Similarly, according to Axios’s Mike Allen, White House officials “assume [Trump] did, indeed, ask Director of National Intelligence Dan Coats and Mike Rogers, head of the National Security Agency, if they could help derail the Flynn probe. … They also assume he said similar things to other officials.”
Having fielded Trump’s requests himself, Comey likely had a sense that the president would not let the FBI get in the way of clearing his name and would pressure those he considered allies to find ways to intervene on his behalf. Even if Comey didn’t predict as much, however, he made it clear in his testimony last week that he took Trump’s comments about the Flynn investigation – “I hope you can see your way clear to letting this go” – as an order.
Which is all to say: Comey – who has said he documented every interaction he had with Trump because he was often “stunned” by the president’s overtures – couldn’t announce publicly that Trump was not under FBI investigation because the likelihood that he soon might be increased with every public and private comment Trump made about the Russia probe.
‘The president did this to himself’
“Keep him away from Twitter, dear God, keep him away from Twitter,” one Trump aide told The Daily Beast when asked about the White House’s game plan. “The president did this to himself.”
Trump’s obsession with clearing his name arguably muddied the situation even further. The angrier he became with Comey for refusing to say publicly that he was not a subject of the investigation, the more he tweeted about it and asked the people around him to interfere.
At that point, for Comey to testify publicly that Trump was not being investigated – as Trump essentially built case toward possible obstruction of justice against himself – would have been shortsighted and, as The Washington Post made clear on Wednesday, ultimately incorrect.
“Just to be clear, for you to make a public statement that [Trump] was not under investigation would not have been illegal, but you felt it made no sense because it could potentially create a duty to correct, if circumstances changed?” Republican Sen. Marco Rubio asked Comey last week.
“Yes, sir,” Comey replied. “We wrestled with it before my [first] testimony where I confirmed that there was an investigation. And there were two primary concerns. One was it creates a duty to correct, which I’ve lived before, and you want to be very careful about doing that. And second, it’s a slippery slope, because if we say the president and the vice president aren’t under investigation, what’s the principled basis for stopping?”
- Andrew Harrer-Pool/Getty Images
‘He seems committed to uncovering any cover-up’
Comey had already made that mistake once, when he announced last summer in a highly publicized press conference that the FBI was closing its investigation into Hillary Clinton’s email server without pursuing criminal charges. His decision to take it upon himself, rather than leave it to the Department of Justice, to close the Clinton email probe severely damaged his reputation with both Democrats, who thought he’d gone rogue, and Republicans, who felt he’d let Clinton off the hook.
The precedent Comey had set for radical transparency with regard to the Clinton probe also compelled him to tell Congress, 11 days before the election, that the FBI was effectively reopening the case after finding new, potentially consequential documents. They were ultimately immaterial to the investigation, and the FBI did not alter its initial findings that Clinton did not commit a crime.
Comey has insisted he would not handle the Clinton probe differently if given the chance to do it over. But he’s been far less willing to comment on the counterintelligence investigation into Russia’s election interference than he was about the email case – perhaps because he noticed that remaining silent tended to be the most effective way of getting Trump to talk.
“The Russia-Trump collusion story is a total hoax, when will this taxpayer funded charade end?” Trump tweeted on May 8.
The next day, Trump fired Comey, in what he acknowledged later – to both Russian diplomats and, days after, to NBC’s Lester Holt – was aimed at making the “Russia thing” go away.
“What is most remarkable is that the president has willingly created this self-portrait,” Bob Bauer, a White House counsel under President Barack Obama, wrote in Lawfare last month.
“As scandals in the making go, this one may become famous for featuring the president as the principal witness against himself: he seems committed to uncovering any cover-up.”