Impeachment- a Citizen's Guide

by Cass R Sunstein

  In the morning of Monday, May 8, 2017, the President met in the Oval Office with senior advisors, including McGahn, Priebus, and Miller, and informed them he had decided to terminate Comey. The President read aloud the first paragraphs of the termination letter he wrote with Miller and conveyed that the decision had been made and was not up for discussion. The President told the group that Miller had researched the issue and determined the President had the authority to terminate Comey without cause. In an effort to slow down the decision-making process, McGahn told the President that DOJ leadership was currently discussing Comey’s status and suggested that White House Counsel’s Office attorneys should talk with Sessions and Rod Rosenstein, who had recently been confirmed as the Deputy Attorney General. McGahn said that previously scheduled meetings with Sessions and Rosenstein that day would be an opportunity to find out what they thought about firing Comey.

  At noon, Sessions, Rosenstein, and Hunt met with McGahn and White House Counsel’s Office attorney Uttam Dhillon at the White House. McGahn said that the President had decided to fire Comey and asked for Sessions’s and Rosenstein’s views. Sessions and Rosenstein criticized Comey and did not raise concerns about replacing him. McGahn and Dhillon said the fact that neither Sessions nor Rosenstein objected to replacing Comey gave them peace of mind that the President’s decision to fire Comey was not an attempt to obstruct justice. An Oval Office meeting was scheduled later that day so that Sessions and Rosenstein could discuss the issue with the President.

  At around 5 p.m., the President and several White House officials met with Sessions and Rosenstein to discuss Comey. The President told the group that he had watched Comey’s May 3 testimony over the weekend and thought that something was “not right” with Comey. The President said that Comey should be removed and asked Sessions and Rosenstein for their views. Hunt, who was in the room, recalled that Sessions responded that he had previously recommended that Comey be replaced. McGahn and Dhillon said Rosenstein described his concerns about Comey’s handling of the Clinton email investigation.

  The President then distributed copies of the termination letter he had drafted with Miller, and the discussion turned to the mechanics of how to fire Comey and whether the President’s letter should be used. McGahn and Dhillon urged the President to permit Comey to resign, but the President was adamant that he be fired. The group discussed the possibility that Rosenstein and Sessions could provide a recommendation in writing that Comey should be removed. The President agreed and told Rosenstein to draft a memorandom, but said he wanted to receive it first thing the next morning. Hunt’s notes reflect that the President told Rosenstein to include in his recommendation the fact that Comey had refused to confirm that the President was not personally under investigation. According to notes taken by a senior DOJ official of Rosenstein’s description of his meeting with the President, the President said, “Put the Russia stuff in the memo.” Rosenstein responded that the Russia investigation was not the basis of his recommendation, so he did not think Russia should be mentioned. The President told Rosenstein he would appreciate it if Rosenstein put it in his letter anyway. When Rosenstein left the meeting, he knew that Comey would be terminated, and he told DOJ colleagues that his own reasons for replacing Comey were “not [the President’s] reasons.”

  On May 9, Hunt delivered to the White House a letter from Sessions recommending Comey’s removal and a memorandum from Rosenstein, addressed to the Attorney General, titled “Restoring Public Confidence in the FBI.” McGahn recalled that the President liked the DOJ letters and agreed that they should provide the foundation for a new cover letter from the President accepting the recommendation to terminate Comey. Notes taken by Donaldson on May 9 reflected the view of the White House Counsel’s Office that the President’s original termination letter should “[n]ot [see the] light of day” and that it would be better to offer “[n]o other rationales” for the firing than what was in Rosenstein’s and Sessions’s memoranda. The President asked Miller to draft a new termination letter and directed Miller to say in the letter that Comey had informed the President three times that he was not under investigation. McGahn, Priebus, and Dhillon objected to including that language, but the President insisted that it be included. McGahn, Priebus, and others perceived that language to be the most important part of the letter to the President. Dhillon made a final pitch to the President that Comey should be permitted to resign, but the President refused.

  Around the time the President’s letter was finalized, Priebus summoned Spicer and the press team to the Oval Office, where they were told that Comey had been terminated for the reasons stated in the letters by Rosenstein and Sessions. To announce Comey’s termination, the White House released a statement, which Priebus thought had been dictated by the President. In full, the statement read: “Today, President Donald J. Trump informed FBI Director James Comey that he has been terminated and removed from office. President Trump acted based on the clear recommendations of both Deputy Attorney General Rod Rosenstein and Attorney General Jeff Sessions.”

  That evening, FBI Deputy Director Andrew McCabe was summoned to meet with the President at the White House. The President told McCabe that he had fired Comey because of the decisions Comey had made in the Clinton email investigation and for many other reasons. The President asked McCabe if he was aware that Comey had told the President three times that he was not under investigation. The President also asked McCabe whether many people in the FBI disliked Comey and whether McCabe was part of the “resistance” that had disagreed with Comey’s decisions in the Clinton investigation. McCabe told the President that he knew Comey had told the President he was not under investigation, that most people in the FBI felt positively about Comey, and that McCabe worked “very closely” with Comey and was part of all the decisions that had been made in the Clinton investigation.

  Later that evening, the President told his communications team he was unhappy with the press coverage of Comey’s termination and ordered them to go out and defend him. The President also called Chris Christie and, according to Christie, said he was getting “killed” in the press over Comey’s termination. The President asked what he should do. Christie asked, “Did you fire [Comey] because of what Rod wrote in the memo?”, and the President responded, “Yes.” Christie said that the President should “get Rod out there” and have him defend the decision. The President told Christie that this was a “good idea” and said he was going to call Rosenstein right away.

  That night, the White House Press Office called the Department of Justice and said the White House wanted to put out a statement saying that it was Rosenstein’s idea to fire Comey. Rosenstein told other DOJ officials that he would not participate in putting out a “false story.” The President then called Rosenstein directly and said he was watching Fox News, that the coverage had been great, and that he wanted Rosenstein to do a press conference. Rosenstein responded that this was not a good idea because if the press asked him, he would tell the truth that Comey’s firing was not his idea. Sessions also informed the White House Counsel’s Office that evening that Rosenstein was upset that his memorandum was being portrayed as the reason for Comey’s termination.

  In an unplanned press conference late in the evening of May 9, 2017, Spicer told reporters, “It was all [Rosenstein]. No one from the White House. It was a DOJ decision.” That evening and the next morning, White House officials and spokespeople continued to maintain that the President’s decision to terminate Comey was driven by the recommendations the President received from Rosenstein and Sessions.

  In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office. The media subsequently reported that during the May 10 meeting the President brought up his decision the prior day to terminate Comey, telling Lavrov and Kislyak: “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.” The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information.” Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Comey, “he is crazy.” When McGahn asked the President about his comments to Lavrov, the President said it was good that Comey was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done.

  That same morning, on May 10, 2017, the President called McCabe. According to a memorandum McCabe wrote following the call, the President asked McCabe to come over to the White House to discuss whether the President should visit FBI headquarters and make a speech to employees. The President said he had received “hundreds” of messages from FBI employees indicating their support for terminating Comey. The President also told McCabe that Comey should not have been permitted to travel back to Washington, D.C. on the FBI’s airplane after he had been terminated and that he did not want Comey “in the building again,” even to collect his belongings. When McCabe met with the President that afternoon, the President, without prompting, told McCabe that people in the FBI loved the President, estimated that at least 80% of the FBI had voted for him, and asked McCabe who he had voted for in the 2016 presidential election.

  In the afternoon of May 10, 2017, deputy press secretary Sarah Sanders spoke to the President about his decision to fire Comey and then spoke to reporters in a televised press conference. Sanders told reporters that the President, the Department of Justice, and bipartisan members of Congress had lost confidence in Comey, “[a]nd most importantly, the rank and file of the FBI had lost confidence in their director. Accordingly, the President accepted the recommendation of his Deputy Attorney General to remove James Comey from his position.” In response to questions from reporters, Sanders said that Rosenstein decided “on his own” to review Comey’s performance and that Rosenstein decided “on his own” to come to the President on Monday, May 8 to express his concerns about Comey. When a reporter indicated that the “vast majority” of FBI agents supported Comey, Sanders said, “Look, we’ve heard from countless members of the FBI that say very different things.” Following the press conference, Sanders spoke to the President, who told her she did a good job and did not point out any inaccuracies in her comments. Sanders told this Office that her reference to hearing from “countless members of the FBI” was a “slip of the tongue.” She also recalled that her statement in a separate press interview that rank-and-file FBI agents had lost confidence in Comey was a comment she made “in the heat of the moment” that was not founded on anything.

  Also on May 10, 2017, Sessions and Rosenstein each spoke to McGahn and expressed concern that the White House was creating a narrative that Rosenstein had initiated the decision to fire Comey. The White House Counsel’s Office agreed that it was factually wrong to say that the Department of Justice had initiated Comey’s termination, and McGahn asked attorneys in the White House Counsel’s Office to work with the press office to correct the narrative.

  The next day, on May 11, 2017, the President participated in an interview with Lester Holt. The President told White House Counsel’s Office attorneys in advance of the interview that the communications team could not get the story right, so he was going on Lester Holt to say what really happened. During the interview, the President stated that he had made the decision to fire Comey before the President met with Rosenstein and Sessions. The President told Holt, “I was going to fire regardless of recommendation . . . . [Rosenstein] made a recommendation. But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it.” The President continued, “And in fact, when I decided to just do it, I said to myself—I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.”

  In response to a question about whether he was angry with Comey about the Russia investigation, the President said, “As far as I’m concerned, I want that thing to be absolutely done properly.” The President added that he realized his termination of Comey “probably maybe will confuse people” with the result that it “might even lengthen out the investigation,” but he “ha(d] to do the right thing for the American people” and Comey was “the wrong man for that position.” The President described Comey as “a showboat” and “a grandstander,” said that “[t]he FBI has been in turmoil,” and said he wanted “to have a really competent, capable director.” The President affirmed that he expected the new FBI director to continue the Russia investigation.

  On the evening of May 11, 2017, following the Lester Holt interview, the President tweeted, “Russia must be laughing up their sleeves watching as the U.S. tears itself apart over a Democrat EXCUSE for losing the election.” The same day, the media reported that the President had demanded that Comey pledge his loyalty to the President in a private dinner shortly after being sworn in. Late in the morning of May 12, 2017, the President tweeted, “Again, the story that there was collusion between the Russians & Trump campaign was fabricated by Dems as an excuse for losing the election.” The President also tweeted, “James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” and “When James Clapper himself, and virtually everyone else with knowledge of the witch hunt, says there is no collusion, when does it end?”

  Analysis

  In analyzing the President’s decision to fire Comey, the following evidence is relevant to the elements of obstruction of justice:

  a. Obstructive act. The act of firing Comey removed the individual overseeing the FBI’s Russia investigation. The President knew that Comey was personally involved in the investigation based on Comey’s briefing of the Gang of Eight, Comey’s March 20, 2017, public testimony about the investigation, and the President’s one-on-one conversations with Comey.

  Firing Comey would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation—for example, if the termination would have the effect of delaying or disrupting the investigation or providing the President with the opportunity to appoint a director who would take a different approach to the investigation that the President perceived as more protective of his personal interests. Relevant circumstances bearing on that issue include whether the President’s actions had the potential to discourage a successor director or other law enforcement officials in their conduct of the Russia investigation. The President fired Comey abruptly without offering him an opportunity to resign, banned him from the FBI building, and criticized him publicly, calling him a “showboat” and claiming that the FBI was “in turmoil” under his leadership. And the President followed the termination with public statements that were highly critical of the investigation; for example, three days after firing Comey, the President referred to the investigation as a “witch hunt” and asked, “when does it end?” Those actions had the potential to affect a successor director’s conduct of the investigation.

  The anticipated effect of removing the FBI director, however, would not necessarily be to prevent or impede the FBI from continuing its investigation. As a general matter, FBI investigations run under the operational direction of FBI personnel levels below the FBI director. Bannon made a similar point when he told the President that he could fire the FBI director, but could not fire the FBI. The White House issued a press statement the day after Comey was fired that said, “The investigation
would have always continued, and obviously, the termination of Comey would not have ended it.” In addition, in his May 11 interview with Lester Holt, the President stated that he understood when he made the decision to fire Comey that the action might prolong the investigation. And the President chose McCabe to serve as interim director, even though McCabe told the President he had worked “very closely” with Comey and was part of all the decisions made in the Clinton investigation.

  b. Nexus to a proceeding. The nexus element would be satisfied by evidence showing that a grand jury proceeding or criminal prosecution arising from an FBI investigation was objectively foreseeable and actually contemplated by the President when he terminated Comey.

  Several facts would be relevant to such a showing. At the time the President fired Comey, a grand jury had not begun to hear evidence related to the Russia investigation and no grand jury subpoenas had been issued. On March 20, 2017, however, Comey had announced that the FBI was investigating Russia’s interference in the election, including “an assessment of whether any crimes were committed.” It was widely known that the FBI, as part of the Russia investigation, was investigating the hacking of the DNC’s computers—a clear criminal offense.

  In addition, at the time the President fired Comey, evidence indicates the President knew that Flynn was still under criminal investigation and could potentially be prosecuted, despite the President’s February 14, 2017, request that Comey “let[] Flynn go.” On March 5, 2017, the White House Counsel’s Office was informed that the FBI was asking for transition-period records relating to Flynn—indicating that the FBI was still actively investigating him. The same day, the President told advisors he wanted to call Dana Boente, then the Acting Attorney General for the Russia investigation, to find out whether the White House or the President was being investigated. On March 31, 2017, the President signaled his awareness that Flynn remained in legal jeopardy by tweeting that “Mike Flynn should ask for immunity” before he agreed to provide testimony to the FBI or Congress. And in late March or early April, the President asked McFarland to pass a message to Flynn telling him that the President felt bad for him and that he should stay strong, further demonstrating the President’s awareness of Flynn’s criminal exposure.