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The Mueller Report and Donald Trump; An Analysis - Part 6: Obstruction - The Evidence: The Firing of James Comey

Updated on June 27, 2019
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ME has spent most of his retirement from service to the United States studying, thinking, and writing about the country he served.


The Investigation Turns Personal

Until Donald Trump, the FBI investigation into the Russian attack on our democracy was concerning the Russians and the possible conspiracy between Trump Campaign members and the Russians. As former FBI Director James Comey assured the president privately, but never publicly, Trump himself was not the object of his investigation.

That all changed when Trump couldn't leave well enough alone, as all his advisors were suggesting (except for son-in-law Jared Kushner) and he decided to fire Comey because of "that Russia thing", as he later told the Russian and Lester Holt of NBC. While the firing of Comey did not suggest that Trump was personally conspiring with Russia, it did point strongly toward obstruction of justice as Trump dearly wanted the investigation into Russia and his Campaign to stop.

So, on May 9, 2017, Donald Trump sent is bodyman to FBI headquarters to deliver the termination to the director, who happened to be in Los Angeles giving a speech to other FBI agents. And thus begins this chapter.

The Firing and The Cover Up on Why Comey Was Fired

The Obstructive Acts - Evidence

As testimony revealed in Special Council Mueller's investigation, Donald Trump had predetermined that he was going to fire FBI Director James Comey. Then he began constructing a cover story.

Trump never gave up on trying to get Comey to publicly say that he was not under investigation - Comey wouldn't do it. In his May 3, 2017 testimony to Congress, 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." On May 5, Trump told aides he was going to fire Comey. On the morning of May 8, Trump again told senior staff the same thing. On May 9, he did just that using the termination letter to publicly state that Comey "had on three occasions informed the President that he was not under investigation."

During the morning meeting on May 8, Trump told the group that "... Miller had researched the issue and determined the President had the authority to terminate Comey without cause". What he didn't say was that a president can't fire somebody in order to commit a crime, in this case obstruction of justice. In any case, it wasn't until White House Council Dan McGahn suggested DOJ be consulted that AG Sessions and Dep AG Rod Rosenstein were brought into the process.

At the meeting, McGahn told AG Sessions and Deputy AG Rosenstein what Trump had in mind. "Sessions and Rosenstein criticized Comey and did not raise concerns about replacing him." Upon hearing this McGahn decided that because "neither Sessions nor Rosenstein objected to replacing Comey" it gave him "peace of mind that the President's decision to fire Comey was not an attempt to obstruct justice." A meeting with Trump was set up for later that evening.

Up to this point in time, the reasons given to Sessions and Rosenstein for the termination was related to Comey's mishandling of the Clinton investigation. Trump asked Rosenstein to draft a memo stating why Comey should be fired (remember, the decision had already been made) and give it to Trump the morning of May 9. Given the Clinton connection, he was willing to go along.

But then Trump asked Rosenstein "to include in his recommendation the fact that Comey had refused to confirm that the President was not personally under investigation." Rosenstein said no, because the reason for the termination was Clinton and not the Russian investigation and that he didn't want to include such a statement. Nevertheless, Trump "told Rosenstein he would appreciate it if Rosenstein put it in his letter anyway " - Rosenstein ignored him.

Upon receiving the Rosenstein memo on May 9, Trump said he liked it and said it should provide the foundation for the firing and that a new cover letter be written. The White House Councils office said "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 emphasis is the author's) Nevertheless, Trump insisted that "Comey had informed the President three times that he was not under investigation." Against everybody's advise, this obstructive language was included.1

It was this requirement to mention the Russian investigation, the subsequent statements to the Russians, and an interview with own news media that revealed Trump's true intent for firing FBI Director James Comey and turned the firing of Comey into a clear obstructive act.

1 It is interesting to note that most of Trump's staff recommended that Trump let Comey resign, the normal procedure in this kind of situation, rather than actually be fired. Trump said no.

The Nexus - Evidence

All of Trump's activity leading up to firing Comey clearly indicate Trump was fixated on getting public recognition that the FBI was not investigating him personally. He was also very worried that the FBI's investigation itself was going to impact his ability to govern as well be an overall embarrassment. To say the least, he would be very happy if the investigation ended. Unfortunately for Donald Trump trying to end an official federal investigation into his administration and Campaign provides the nexus needed between the obstructive act and corrupt intent.

Corrupt Intent - Evidence

The question here is "did Trump know that firing Comey to stop the investigation wrong"? If he did, is there any evidence?

Was Trump upset about the FBI investigation and wanted it stopped? Yes, much testimony shows Trump was fixated on having Comey tell the world that Trump, personally, was not under investigation. He told many people of this and when Comey did not make such a statement on May 3, Trump had enough and prepared to fire him over the investigation. What evidence is there that Trump knew this was wrong?

The initial termination letter had several references to the Russian investigation included, but concerns were raised by his staff that this might constitute obstruction of justice. To cover up the real reason (initially at least) Trump had Rosenstein create a memo outlining why Comey should be fired (even though Trump had already made this decision). Rosenstein wrote such a memo which focused solely on Comey's handling of the Clinton investigation. Had this been Trump's real reason, that would have been the end of this episode - but it wasn't.

Not only did Trump reinsert words about Comey not investigation into the final termination letter, he tried to pin the reason on the firing entirely on Rosenstein's memo. In fact he told Rosenstein to make such a claim publicly but he wouldn't. Nevertheless "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 ." This, of course, was a lie.

Trump sealed the deal, as it were with a conversation he had in the Oval Office with the Russian Ambassador Kislyak and an interview with Lester Holt of NBC. On May 10, 2017, Trump held a meeting with the Russian Ambassador and reported that

"... 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."

Then on May 11, 2017,

"The President told Holt, "I was going to fire [Comey] 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 .

But later in the interview, Trump did say he "... expected the new FBI director to continue the Russia investigation."

Analyzing the Firing of James Comey

Obstructive Act - Analysis

When Trump fired Comey he knew that Comey was in charge of and personally involved in the FBI investigation into the Russian attack on our political system and the multiple contacts between the Trump Campaign and the very same Russians. Mueller notes that

"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."

Well did the firing of Comey meet that criteria? Circumstances surrounding this issue include

  1. "Whether the President's actions had the potential to discourage a successor director ... in their conduct of the Russia investigation."
  2. "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."
  3. "... the President followed the termination with public statements that were highly critical of the investigation;" calling it a "witch hunt " and asked, "when does it end? "
  4. Mueller concluded that "Those actions had the potential to affect a successor director 's conduct of the investigation." and therefore qualify for an obstructive act even though it was not anticipated the investigation would end with the firing of Comey.

Nexus - Analysis

Here "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." Even though no grand jury had been seated yet, given that the FBI "was investigating Russia's interference in the election , including "an assessment of whether any crimes were committed ." it could reasonably be assumed such a proceeding would be formed. It is also known that Trump knew Gen Flynn was still under investigation by the FBI for criminal activity and therefore would likely end up in some sort of judicial proceeding.

Corrupt Intent - Analysis

Mueller opens with "Substantial evidence indicates that the catalyst for the President 's decision to fire Comey was Comey's unwillingness to publicly state that the President was not personally under investigation, despite the President's repeated requests that Comey make such an announcement." He then establishes that Trump told McGahn that if Comey didn't clear him of being investigated in the March 3 congressional testimony "that would be the last straw."

Further, Mueller makes clear Trump had a self-preservation interest in suppressing or ending the investigation. The evidence reveals, according to Mueller that "... the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns." And Trump did not that want to happen.

© 2019 Scott Belford


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