Impeachment- a Citizen's Guide

by Cass R Sunstein

  4. The President Asks Comey to “Lift the Cloud” Created by the Russia Investigation

  On the morning of March 30, 2017, the President reached out to Comey directly about the Russia investigation. According to Comey’s contemporaneous record of the conversation, the President said “he was trying to run the country and the cloud of this Russia business was making that difficult.” The President asked Comey what could be done to “lift the cloud.” Comey explained “that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work.” Comey also told the President that congressional leaders were aware that the FBI was not investigating the President personally. The President said several times, “We need to get that fact out.” The President commented that if there was “some satellite” (which Comey took to mean an associate of the President’s or the campaign) that did something, “it would be good to find that out” but that he himself had not done anything wrong and he hoped Comey “would find a way to get out that we weren’t investigating him.” After the call ended, Comey called Boente and told him about the conversation, asked for guidance on how to respond, and said he was uncomfortable with direct contact from the President about the investigation.

  On the morning of April 11, 2017, the President called Comey again. According to Comey’s contemporaneous record of the conversation, the President said he was “following up to see if [Comey] did what [the President] had asked last time—getting out that he personally is not under investigation.” Comey responded that he had passed the request to Boente but not heard back, and he informed the President that the traditional channel for such a request would be to have the White House Counsel contact DOJ leadership. The President said he would take that step. The President then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.” In a televised interview that was taped early that afternoon, the President was asked if it was too late for him to ask Comey to step down; the President responded, “No, it’s not too late, but you know, I have confidence in him. We’ll see what happens. You know, it’s going to be interesting.” After the interview, Hicks told the President she thought the President’s comment about Comey should be removed from the broadcast of the interview, but the President wanted to keep it in, which Hicks thought was unusual.

  Later that day, the President told senior advisors, including McGahn and Priebus, that he had reached out to Comey twice in recent weeks. The President acknowledged that McGahn would not approve of the outreach to Comey because McGahn had previously cautioned the President that he should not talk to Comey directly to prevent any perception that the White House was interfering with investigations. The President told McGahn that Comey had indicated the FBI could make a public statement that the President was not under investigation if the Department of Justice approved that action. After speaking with the President, McGahn followed up with Boente to relay the President’s understanding that the FBI could make a public announcement if the Department of Justice cleared it. McGahn recalled that Boente said Comey had told him there was nothing obstructive about the calls from the President, but they made Comey uncomfortable. According to McGahn, Boente responded that he did not want to issue a statement about the President not being under investigation because of the potential political ramifications and did not want to order Comey to do it because that action could prompt the appointment of a Special Counsel. Boente did not recall that aspect of his conversation with McGahn, but did recall telling McGahn that the direct outreaches from the President to Comey were a problem. Boente recalled that McGahn agreed and said he would do what he could to address that issue.

  Analysis

  In analyzing the President’s reaction to Sessions’s recusal and the requests he made to Coats, Pompeo, Rogers, and Comey, the following evidence is relevant to the elements of obstruction of justice:

  a. Obstructive act. The evidence shows that, after Comey’s March 20, 2017, testimony, the President repeatedly reached out to intelligence agency leaders to discuss the FBI’s investigation. But witnesses had different recollections of the precise content of those outreaches. Some ODNI officials recalled that Coats told them immediately after the March 22 Oval Office meeting that the President asked Coats to intervene with Comey and “stop” the investigation. But the first-hand witnesses to the encounter remember the conversation differently. Pompeo had no memory of the specific meeting, but generally recalled the President urging officials to get the word out that the President had not done anything wrong related to Russia. Coats recalled that the President asked that Coats state publicly that no link existed between the President and Russia, but did not ask him to speak with Comey or to help end the investigation. The other outreaches by the President during this period were similar in nature: The President asked Rogers if he could do anything to refute the stories linking the President to Russia, and the President asked Comey to make a public statement that would “lift the cloud” of the ongoing investigation by making clear that the President was not personally under investigation. These requests, while significant enough that Rogers thought it important to document the encounter in a written memorandum, were not interpreted by the officials who received them as directives to improperly interfere with the investigation.

  b. Nexus to a proceeding. At the time of the President’s outreaches to leaders of the intelligence agencies in late March and early April 2017, the FBI’s Russia investigation did not yet involve grand jury proceedings. The outreaches, however, came after and were in response to Comey’s March 20, 2017, announcement that the FBI, as a part of its counterintelligence mission, was conducting an investigation into Russian interference in the 2016 presidential election. Comey testified that the investigation included any links or coordination with Trump campaign officials and would “include an assessment of whether any crimes were committed.”

  c. Intent. As described above, the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation—and the President affirmatively told Comey that if “some satellite” was involved in Russian election interference “it would be good to find that out.” But the President’s intent in trying to prevent Sessions’s recusal, and in reaching out to Coats, Pompeo, Rogers, and Comey following Comey’s public announcement of the FBI’s Russia investigation, is nevertheless relevant to understanding what motivated the President’s other actions towards the investigation.

  The evidence shows that the President was focused on the Russia investigation’s implications for his presidency—and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia. In early March, the President attempted to prevent Sessions’s recusal, even after being told that Sessions was following DOJ conflict-of-interest rules. After Sessions recused, the White House Counsel’s Office tried to cut off further contact with Sessions about the matter, although it is not clear whether that direction was conveyed to the President. The President continued to raise the issue of Sessions’s recusal and, when he had the opportunity, he pulled Sessions aside and urged him to unrecuse. The President also told advisors that he wanted an Attorney General who would protect him, the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The President made statements about being able to direct the course of criminal investigations, saying words to the effect of, “You’ re telling me that Bobby and Jack didn’t talk about investigations? Or Obama didn’t tell Eric Holder who to investigate?”

  After Comey publicly confirmed the existence of the FBI’s Russia investigation on March 20, 2017, the President was “beside himself” and expressed anger that Comey did not issue a statement correcting any misperception that the President himself was under investigation. The President sought to speak with Acting Attorney General Boente directly and told McGahn
to contact Boente to request that Comey make a clarifying statement. The President then asked other intelligence community leaders to make public statements to refute the suggestion that the President had links to Russia, but the leaders told him they could not publicly comment on the investigation. On March 30 and April 11, against the advice of White House advisors who had informed him that any direct contact with the FBI could be perceived as improper interference in an ongoing investigation, the President made personal outreaches to Comey asking him to “lift the cloud” of the Russia investigation by making public the fact that the President was not personally under investigation.

  Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.

  Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia. The President told Coats he “can’t do anything with Russia,” he told Rogers that “the thing with the Russians” was interfering with his ability to conduct foreign affairs, and he told Comey that “he was trying to run the country and the cloud of this Russia business was making that difficult.”

  D. Events Leading Up To and Surrounding the Termination of FBI Director Comey

  Overview

  Comey was scheduled to testify before Congress on May 3, 2017. Leading up to that testimony, the President continued to tell advisors that he wanted Comey to make public that the President was not under investigation. At the hearing, Comey declined to answer questions about the scope or subjects of the Russia investigation and did not state publicly that the President was not under investigation. Two days later, on May 5, 2017, the President told close aides he was going to fire Comey, and on May 9, he did so, using his official termination letter to make public that Comey had on three occasions informed the President that he was not under investigation. The President decided to fire Comey before receiving advice or a recommendation from the Department of Justice, but he approved an initial public account of the termination that attributed it to a recommendation from the Department of Justice based on Comey’s handling of the Clinton email investigation. After Deputy Attorney General Rod Rosenstein resisted attributing the firing to his recommendation, the President acknowledged that he intended to fire Comey regardless of the DOJ recommendation and was thinking of the Russia investigation when he made the decision. The President also told the Russian Foreign Minister, “I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. . . . . I’m not under investigation.”

  Evidence

  1. Comey Testifies Before the Senate Judiciary Committee and Declines to Answer Questions About Whether the President is Under Investigation

  On May 3, 2017, Comey was scheduled to testify at an FBI oversight hearing before the Senate Judiciary Committee. McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation. The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders. At the hearing, Comey declined to answer questions about the status of the Russia investigation, stating “[t]he Department of Justice ha[d] authorized [him] to confirm that [the Russia investigation] exists,” but that he was “not going to say another word about it” until the investigation was completed. Comey also declined to answer questions about whether investigators had “ruled out anyone in the Trump campaign as potentially a target of th[e] criminal investigation,” including whether the FBI had “ruled out the president of the United States.”

  Comey was also asked at the hearing about his decision to announce 11 days before the presidential election that the FBI was reopening the Clinton email investigation. Comey stated that it made him “mildly nauseous to think that we might have had some impact on the election,” but added that “even in hindsight” he “would make the same decision.” He later repeated that he had no regrets about how he had handled the email investigation and believed he had “done the right thing at each turn.”

  In the afternoon following Comey’s testimony, the President met with McGahn, Sessions, and Sessions’s Chief of Staff Jody Hunt. At that meeting, the President asked McGahn how Comey had done in his testimony and McGahn relayed that Comey had declined to answer questions about whether the President was under investigation. The President became very upset and directed his anger at Sessions. According to notes written by Hunt, the President said, “This is terrible Jeff. It’s all because you recused. AG is supposed to be most important appointment. Kennedy appointed his brother. Obama appointed Holder. I appointed you and you recused yourself. You left me on an island. I can’t do anything.” The President said that the recusal was unfair and that it was interfering with his ability to govern and undermining his authority with foreign leaders. Sessions responded that he had had no choice but to recuse, and it was a mandatory rather than discretionary decision. Hunt recalled that Sessions also stated at some point during the conversation that a new start at the FBI would be appropriate and the President should consider replacing Comey as FBI director. According to Sessions, when the meeting concluded, it was clear that the President was unhappy with Comey, but Sessions did not think the President had made the decision to terminate Comey.

  Bannon recalled that the President brought Comey up with him at least eight times on May 3 and May 4, 2017. According to Bannon, the President said the same thing each time: “He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.” Bannon told the President that he could not fire Comey because “that ship had sailed.” Bannon also told the President that firing Comey was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBI.

  2. The President Makes the Decision to Terminate Comey

  The weekend following Comey’s May 3, 2017, testimony, the President traveled to his resort in Bedminster, New Jersey. At a dinner on Friday, May 5, attended by the President and various advisors and family members, including Jared Kushner and senior advisor Stephen Miller, the President stated that he wanted to remove Comey and had ideas for a letter that would be used to make the announcement. The President dictated arguments and specific language for the letter, and Miller took notes. As reflected in the notes, the President told Miller that the letter should start, “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship—pertaining to the 2016 presidential election, please be informed that I, and I believe the American public—including Ds and Rs—have lost faith in you as Director of the FBI.” Following the dinner, Miller prepared a termination letter based on those notes and research he conducted to support the President’s arguments. Over the weekend, the President provided several rounds of edits on the draft letter. Miller said the President was adamant that he not tell anyone at the White House what they were preparing because the President was worried about leaks.

  In his discussions with Miller, the President made clear that he wanted the letter to open with a reference to him not being under investigation. Miller said he believed that fact was important to the President to show that Comey was not being terminated based on any such investigation. According to Miller, the President wanted to establish as a factual
matter that Comey had been under a “review period” and did not have assurance from the President that he would be permitted to keep his job.

  The final version of the termination letter prepared by Miller and the President began in a way that closely tracked what the President had dictated to Miller at the May 5 dinner: “Dear Director Comey, While I greatly appreciate your informing me, on three separate occasions, that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship with respect to the 2016 Presidential Election, please be informed that I, along with members of both political parties and, most importantly, the American Public, have lost faith in you as the Director of the FBI and you are hereby terminated.” The four-page letter went on to critique Comey’s judgment and conduct, including his May 3 testimony before the Senate Judiciary Committee, his handling of the Clinton email investigation, and his failure to hold leakers accountable. The letter stated that Comey had “asked [the President] at dinner shortly after inauguration to let [Comey] stay on in the Director’s role, and [the President] said that [he] would consider it,” but the President had “concluded that [he] ha[d] no alternative but to find new leadership for the Bureau—a leader that restores confidence and trust.”