Comey’s note: ‘obstruction of justice’ and Donald Trump (analysis)

As The New York Times broke the story of a note by former FBI Director Comey written immediately after a meeting on 14th February 2017 between Comey and President Trump, the Democrats and the mainstream stirred up a predictable firestorm, with claims that the memo is proof Trump has been interfering in the FBI investigation into Russiagate and therefore constitutes an ‘obstruction of justice’

On the strength of these claims further claims have been made that Trump’s alleged interference in the FBI investigation is impeachable.  Many have pointed out that ‘obstruction of justice’ was a key charge in the impeachment proceedings which were being prepared against Richard Nixon during the Watergate scandal, and which caused him to resign.

Is there any substance to any of this?  A number of points are in order.

Firstly, it is standard practice for lawyers and officials to make notes of all business related conversations they undertake and to distribute them to their colleagues.  There is nothing unusual or surprising about Comey drafting a note of his conversation with the President and circulating it amongst the senior staff of the FBI.  What would in fact have been extraordinary and alarming would have been if he had not do so.  The mere fact that Comey made and circulating a note following a meeting with a President who had only just entered office and who Comey would therefore scarcely know is not therefore a sign he was being put under pressure.

It is highly likely the President or his staff made their own record of the meeting.  We do not know the circumstances or location in which the meeting took place.  However if the meeting took place in the Oval Office it is a virtual certainty that Presidential staffers were present, and that a note and quite possibly a full transcript of the meeting was made.

President Trump has hinted that his meetings with Comey were tape recorded.  Whilst that is possible there is no confirmation of it and President Trump’s hint is actually rather ambiguous.  Until more is known it is better not to speculate about this possibility.

Secondly the subject that was discussed during this conversation was not the FBI’s Russiagate counter-espionage investigation but the FBI’s investigation of General Flynn following upon General Flynn’s telephone conversation on 29th December 2016 with Russian ambassador Sergey Kislyak.

The sequence of events is that General Flynn resigned on 13th February 2017 following publication of reports in the media on 9th February 2017 which claimed that Flynn had lied to Vice-President Pence by supposedly telling Pence that he had not discussed with Kislyak during this conversation the subject of the sanctions imposed by President Obama on Russia on 29th December 2016 (the same day as Flynn’s conversation with Kislyak) whereas in fact he had done so.  The conversation between Trump and Comey of which Comey made a note took place on the following day, 14th February 2017.

Comey’s note has not been published and the New York Times does not claim to have seen it.  However it was apparently read out to one of its reporters who recorded it saying the following

“I hope you can see your way clear to letting this go, to letting Flynn go,” Mr. Trump told Mr. Comey, according to the memo. “He is a good guy. I hope you can let this go.”

Mr. Trump told Mr. Comey that Mr. Flynn had done nothing wrong, according to the memo.

Mr. Comey did not say anything to Mr. Trump about curtailing the investigation, replying only: “I agree he is a good guy.”

If this is an accurate record of Comey’s note then I struggle to see how it constitutes evidence of obstruction of justice and if this note were ever produced in a normal trial on such a charge I have no doubt a capable defence attorney would have no difficulty convincing a court that it was not.

The note does not show Trump ordering Comey to drop the investigation, or even asking him to.  It merely expresses the hope he would do so given Trump’s belief that Flynn had done “nothing wrong”.

That is also my view, which I have expressed frequently, as for example in my detailed discussion of the circumstances of Flynn’s resignation which can be found here.

More to the point it is also appears to be the view of several of the investigators and officials involved in looking into Flynn’s case, a fact revealed in the original Washington Post article of 9th February 2017

The nature of Flynn’s pre-inauguration message to Kislyak triggered debate among officials in the Obama administration and intelligence agencies over whether Flynn had violated a law against unauthorized citizens interfering in U.S. disputes with foreign governments, according to officials familiar with that debate. Those officials were already alarmed by what they saw as a Russian assault on the U.S. election.

U.S. officials said that seeking to build such a case against Flynn would be daunting. The law against U.S. citizens interfering in foreign diplomacy, known as the Logan Act, stems from a 1799 statute that has never been prosecuted. As a result, there is no case history to help guide authorities on when to proceed or how to secure a conviction.

Officials also cited political sensitivities. Prominent Americans in and out of government are so frequently in communication with foreign officials that singling out one individual — particularly one poised for a top White House job — would invite charges of political persecution.

Former U.S. officials also said aggressive enforcement would probably discourage appropriate contact. Michael McFaul, who served as U.S. ambassador to Russia during the Obama administration, said that he was in Moscow meeting with officials in the weeks leading up to Obama’s 2008 election win.

“As a former diplomat and U.S. government official, one needs to be able to have contact with foreigners to do one’s job,” McFaul said.

(bold italics added)

The law in question is the Logan Act of 1799 which has never been enforced against any US citizen at any point in US history, but which Acting Attorney General Sally Yates conjured up in order to bring Flynn down.

In the event, following this conversation between Trump and Comey on 14th February 2017, the Logan Act investigation against Flynn has ground on with no end in sight.  Though it is based on a single conversation between Flynn and Kislyak which took place on 29th December 2016 and of which a complete transcript exists, like every one of Comey’s investigations three months later it has produced no result, with no indication that Flynn is either going to be prosecuted under the Logan Act or not.

This has allowed Sally Yates, who Republicans suspect was responsible for the illegal leak of details of the classified transcript of the conversation between Flynn and Kislyak to the media, to go on publicly trashing Flynn’s reputation by giving testimony to Congress and interviews to the media in which she has repeated her preposterous claim that the conversation between Flynn and Kislyak somehow exposed Flynn to blackmail by the Russians.

In the meantime, presumably because prosecuting Flynn under the Logan Act is proving too “daunting”, there is now talk of him being prosecuted for the totally separate and entirely unrelated charge of breaching the Foreign Agents Registration Act because he accepted fees from RT and from Turkey.  All I will say about that is that though Flynn’s accepting these payments was a matter of public knowledge no-one spoke of prosecuting him because of them before.

The Washington Post article of 9th February 2017 spoke of concerns that prosecuting Flynn might “invite charges of political persecution”.  Three months later it is impossible to characterise the treatment of him in any other way.  Whatever Flynn’s faults, it is a shameful treatment of a military officer who has served his country.

Putting all this aside, since Comey’s note shows Trump neither instructing Comey nor requesting Comey to drop the investigation against Flynn, nor of Trump putting pressure on Comey to do so, but merely shows Trump expressing the “hope” Comey would do so, in any sane world no charge of obstructing justice or of perverting the course of justice brought upon it could possibly stick.

The trouble is that as by now should be obvious there is nothing remotely sane about Russiagate.  If there were it would have collapsed under the weight of its own absurdity long ago.

Moreover since impeachment is a political process in which the courts have no say, it would be up to the Senators, with all their partisanship and their feverish speculations, and not the courts or the lawyers, who would decide whether the words reported in Comey’s note amounted to an obstruction of justice.

I have to say that even allowing for that I find the idea that impeachment proceedings might be brought on the strength of the words in Comey’s note altogether too absurd to believe it will happen, much less that such impeachment proceedings (which require the support of two-thirds of the Senate) if brought would succeed.  However given the extent of the hysteria nothing any longer looks impossible.

One point I would make, which is a point made to me by my colleague Adam Garrie.

Much has been said about how the Russians supposedly meddled in the US’s elections in order to undermine the American people’s faith in US democracy.  The latest twist in the story shows that the Russians have no need to do this.

If on the strength of the wording in Comey’s note Donald Trump is impeached just a few months after he was inaugurated President, then the US elite will have done more damage to the American people’s faith in their democracy than the Russians or anyone else could ever do.