As the first week of 2018 comes to an end, the chaos surrounding the Trump administration has reached fever pitch. This is largely thanks to a new book from journalist Michael Wolff about what he observed from his “semi-permanent seat on a couch in the West Wing” over the course of several months. But there were other bombshells this week too, including a story by the New York Times’ Michael Schmidt that offered new details about the steps President Donald Trump took to maintain some level of control over the Russia investigation.
According to Schmidt’s reporting, Trump ordered White House Counsel Donald McGahn to stop Attorney General Jeff Sessions from recusing himself from the Russia investigation. Following the president’s instructions, McGahn tried to get Sessions not to recuse himself, but in the end, Sessions took the advice of career Justice Department lawyers and removed himself from overseeing the investigation (citing his potential conflicts of interest because of the role he played during the Trump campaign), and eventually handed off oversight of the probe to Deputy Attorney General Rod Rosenstein. After the New York Times story was published Thursday night, the AP and the Washington Post quickly followed up with their own reports on this part of Schmidt’s story.
But his reporting contained other crucial new details. For example, his story made painfully clear how much Trump believes the attorney general should act as his own lawyer and protector, asking “Where’s my Roy Cohn?,” referring to his former personal lawyer and fixer who died in 1986. Trump also described the Russia investigation as “fabricated and politically motivated” in a letter he drafted but never sent to James Comey, the FBI director at the time. Rosenstein had a copy of this letter when he drafted his own memo about why Comey should be fired. Schmidt also reported that Special Counsel Robert Mueller has been able to substantiate the “troubling interactions” Comey claimed he’d had with the president. And, according to Schmidt’s story, one White House lawyer, worried about what the president would do, even took “the extraordinary step of misleading Mr. Trump about whether he had the authority to remove him.” And, to top it all off, Sessions reportedly was asking around for damaging information on Comey in an effort to undermine him.
To help unravel this series of damning revelations, I turned to some of Just Security’s expert editors and contributors to weigh in. Here’s what they had to say:
The latest revelations showing that Trump believes that the Attorney General has a responsibility to “protect” him provides additional context and evidence regarding Trump’s intent when he took steps that could be viewed as obstructing the Justice Department’s investigation of the Trump campaign generally and of Michael Flynn specifically. The obstruction inquiry turns on whether Trump had a corrupt intent when he asked Comey to back off the Flynn investigation and then later fired Comey. And in this regard, the Trump-Comey conversation about Flynn, which occurred in the Oval Office on Feb. 14, 2017, when Trump cleared the office of all other administration officials, might end up being the more significant.
Why? Because while Trump might point to a list of reasons for firing Comey (and he has at various times asserted different ones), if on Feb. 14, 2017, he knew that Flynn had lied to the FBI in his interview (and there is evidence that he did know), then it is difficult to see his private request to Comey to let the Flynn investigation go as anything but obstruction of justice. The revelations about his view of Sessions’ role, and his anger that Sessions failed to “protect” him, just add to the accumulation of evidence that Trump views the Department of Justice as a political institution that should protect his administration and friends. Whether at the end of the day it all amounts to an obstruction of justice charge — and the two barriers to this outcome are whether Mueller could prove beyond a reasonable doubt that Trump had a corrupt motive, given Trump’s position as president and his complete power to fire the FBI director, and the Justice Department’s current view that a sitting president cannot be criminally indicted — once all the evidence is developed, members of Congress will have to consider seriously whether impeachment is warranted. Some of the president’s other violations of norms are just offensive or even silly, but a president taking actions to aim the Justice Department at his enemies, and away from his friends, is an extraordinarily dangerous precedent.
If the New York Times story is correct, White House Counsel Don McGahn should resign. President Trump reportedly directed McGahn to prevent Sessions from recusing himself related to campaign-related investigations. McGahn then reportedly lobbied Sessions not to recuse. The White House Counsel has no business interfering with Department of Justice recusal determinations. According to Sessions and Comey, DOJ regulations required Sessions’ recusal. Moreover, while McGahn is one of the few presidential aides authorized under McGahn’s own White House policy to communicate with the Department of Justice about enforcement matters, that policy prohibits this kind of political interference. The policy was designed “to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence.” McGahn is not to interfere with the administration of justice, including recusal. Recusal regulations, by definition, are designed to ensure the evenhanded administration of justice. If McGahn lobbied Sessions not to recuse, he needs to step down.
If Attorney General Sessions was, in fact, looking for derogatory information on Comey and advocating for one negative article a day to be printed about him, he, too, must resign. The idea of the top law enforcement official of the United States trying to smear the FBI Director in an attempt to protect the president and delegitimize an ongoing investigation is repugnant to the the values and principles of the FBI and Justice Department. It also smacks of hypocrisy in light of the accusations of bias and politicization that this administration has made against both agencies in recent months.
If we are, for better or worse, no longer shocked when Trump flouts basic democratic norms—a tendency his apologists are prone to chalk up to inexperience and ignorance—this story is a reminder that his Mafioso approach to the Executive Branch is ultimately implemented by people who ought to know better.
Take Trump’s now notorious fury about Sessions’ “decision” to recuse himself from oversight of the investigation into Russian interference in the presidential campaign. I’ve dropped those scare quotes around “decision” because it’s hard to imagine a case where recusal would be more unambiguously demanded by the Justice Department’s own rules. The only real “decision” was whether the new Attorney General would do what DOJ lawyers all understood to be required or attempt to flout them. We may reasonably suppose that Trump, whose short attention span is legendary, did not understand this, or that the role of the Attorney General is not to “protect” the president and his friends from criminal inquiries. But we cannot make the same charitable supposition about White House Counsel Don McGahn, who lobbied Sessions to bend the rules at Trump’s direction, or imagine that he did not understand how wildly inappropriate his intervention was.
Then there’s Rod Rosenstein, whose appointment to the number two spot at DOJ reassured many observers: Here was a sober professional with a good reputation who would surely curb some of the administration’s worse instincts. Yet the story makes clear, if there was any doubt, that Rosenstein was not merely an unwitting pawn the administration used to provide a pretextual rationalization for FBI director James Comey’s sacking. Rather, Rosenstein was aware quite early on that Trump and Sessions were seeking to remove Comey—whether or not he knew of the effort to dig up “dirt” that could be used to smear him in the media—and was provided a copy of an initial draft memo that invoked a “fabricated and politically motivated” Russia investigation as one of the reasons to do so. Rosenstein nevertheless promptly followed orders to gin up a transparently bogus, unrelated justification—hinging, improbably enough, on Comey’s unfair treatment of Hillary Clinton. Administration officials did their best to keep a straight face while publicly pretending to believe Rosenstein’s arguments had motivated Comey’s dismissal, until Trump acknowledged the obvious fact that they hadn’t in a televised interview a few days later.
It may well be that Trump often violates rules and norms of liberal democratic government because he simply hasn’t bothered to learn what they are. But his ignorance would be far less damaging without the complicity of scores of professionals who do know, but choose to keep quiet and follow orders anyways.
Yesterday’s reporting in the New York Times contains some very significant facts that bolster the evidence that President Trump attempted to obstruct justice regarding the Russia investigation.
First, the report says that at Trump’s direction, McGahn tried to persuade Sessions not to recuse himself from the Russia investigation. In light of Sessions’ role on the Trump campaign and his contact with the Russian ambassador, recusal was appropriate under DOJ policy. McGahn’s efforts to persuade Sessions not to recuse himself under these circumstances could be evidence of a conspiracy to obstruct justice. The key area for further inquiry will be Trump’s motive. Obstruction of justice requires proof of a corrupt purpose. If Trump wanted to keep Sessions in charge of the Russia investigation so that Sessions could protect Trump, then trying to prevent him from complying with the DOJ recusal rules could provide a strong case for obstruction. Trump’s other statements about his belief that the role of the Attorney General is to protect the president adds important context to this evidence. In the end, Mueller will look to the totality of the circumstances to see if he can prove a corrupt purpose by Trump.
Second, and perhaps even more troubling, the report says that an aide to Sessions went to a congressional office seeking dirt on then-FBI Director James Comey because Sessions wanted at least one negative media story a day about Comey. If true, Mueller would want to determine whether Sessions had corrupt intent to obstruct justice. If the motive was to cast doubt on Comey’s credibility while he was leading the Russia investigation, this could be further evidence of conspiracy to obstruct justice, and a conspiracy that includes not only Trump, but possibly McGahn, Sessions and anyone who agreed to assist them in their efforts.
The article indicates that at Trump’s orders, McGahn tried to convince Sessions not to recuse himself. This is very unusual. Lawyers recuse themselves when there is a conflict of interest or an appearance that they couldn’t be fair. Why did Trump care so much about whether Sessions recused himself? According to the article, Trump said that he wanted Sessions to “safeguard” him, as he believed other attorneys general had done. This is really important because Mueller is investigating whether Trump obstructed justice by firing Comey with “corrupt” intent. In other words, by acting with the intent to unlawfully impede the investigation. To prove someone’s intent, prosecutors often ask jurors to make inferences from what the person said or did because we don’t have a magical telescope that can look inside their brain. Trump’s statements about Sessions’ recusal can raise an inference that Trump wanted Sessions to impede or stop the Russia investigation. Mueller could argue that this suggests that Trump had the same intent when he fired Comey.
The article also notes that the first sentence of the original letter firing Comey, which Trump asked Stephen Miller to write, mentioned Trump’s claim that the Russia investigation was “fabricated and politically motivated.” That also suggests that the Russia investigation was Trump’s motivation for the firing, which he famously admitted to Lester Holt in an interview after initially claiming otherwise.