New Evidence of Obstruction of Justice in House Intelligence Committee Minority Report

The dueling House Intelligence Committee reports on Russian election interference, released on Friday, provide new information that adds significantly to a picture of obstruction of justice and abuse of power on the part of President Donald Trump in the Russia investigation.

Nevertheless, there are reasons to be cautious here. The information is provided only in the Minority report, and the bulk of these revelations depend on testimony by former FBI Acting Director Andrew McCabe, whose credibility as a witness in some respects may be under a cloud.

At the same time, the reason that this information is parsed in the Minority’s report but not the Majority’s is because Chairman Rep. Devin Nunes (R.-Calif) appears not to have had any interest in investigating the obstruction issue (much to his discredit). What’s more, McCabe’s December 2017 testimony is detailed and, in important instances, refers to other senior FBI officials as witnesses to the same events and conversations. At least one of those officials, James Baker, the FBI General Counsel was also present during McCabe’s testimony. It is also useful to recall that Rep. Nunes and the GOP Committee members have themselves publicly relied on McCabe’s December 2017 testimony. In particular, they invoked McCabe’s testimony in a key sentence in their earlier memo concerning the surveillance of Carter Page as though McCabe’s testimony provided significant support for that memo’s conclusions.

With those caveats and understanding in mind, what are the new revelations on potential obstruction and abuse of power?

The Minority report contains information that adds to the substantive allegations of obstruction, and also to the range of corroborating evidence.

One of the most important revelations is that the FBI General Counsel and FBI Director’s chief of staff listened in on James Comey’s side of at least some phone conversations with the president, in which Mr. Trump reportedly engaged in efforts to alter the course of the Russia investigation. As the Minority report states, “(Jim) Rybicki and Baker also heard Comey’s side of phone conversations with the President, in real time.” It is, however, not clear which particular phone conversations with the president they were able to hear in this manner. Comey testified to Congress that he had six separate phone conversations with Trump.

Both the FBI Director and Deputy Director interpreted one of the president’s phone calls as threatening Comey if he did not lift the cloud of the Russia investigation. In a phone conversation on April 11, Trump said he wanted Comey to lift the cloud, “because I have been very loyal to you, very loyal; we had that thing you know,” according to Comey’s written testimony and contemporaneous memo. But why would the president refer to his loyalty to Comey rather than Comey’s “honest loyalty” to the president?

McCabe testified that the FBI Director and he “weren’t 100 percent sure what that was” but interpreted it as “a veiled threat.” Rep. Adam Schiff (D.-Calif) asked McCabe to clarify:

SCHIFF: And in this case the veiled threat would be against Director Comey?

MCCABE: That’s correct.

SCHIFF: Along the lines of, I the President have been very loyal to you. I want you to lift the cloud.  Otherwise I might be less loyal to you.  Is that the—

MCCABE: That’s correct.

SCHIFF: That was the impression of Director Comey?

MCCABE: It was his and my impression.

Second, the FBI Director and Deputy Director were also concerned that the president was threatening to take action against McCabe if the FBI Director did not lift the cloud of the Russia investigation. According to Comey’s testimony and contemporaneous memos, Mr. Trump repeatedly brought up McCabe in these conversations about the Russia investigation. McCabe testified that he and Comey were concerned that the president “was bringing it up as some sort of an almost a veiled threat.”

Rep. Schiff once again asked McCabe to clarify:

SCHIFF: That if the Director didn’t lift the cloud of the Russian investigation, that he would take action against you?

MCCABE: That’s correct. That was my concern, and as I understand it, that was Director Comey’s concern as well.  

Other observations in the Minority report and in McCabe’s testimony are perhaps less significant on their own, but also add to the case of obstruction and abuse of power. It is readily apparent that McCabe’s testimony very closely tracks Comey’s congressional testimony. McCabe testified, for example, that the FBI Director debriefed senior FBI leadership following encounters with the president and that McCabe and others shared Comey’s views of the inappropriateness of the president’s actions. McCabe corroborated that in February 2017 Comey, following his meeting with the president in the Oval Office, informed his senior FBI leadership that “the President was asking him to end an investigative matter.” The president’s subsequent phone calls to the FBI Director were even broader. “Comey’s impression was that the President was still quite frustrated with the fact that we were continuing our investigative efforts into the — into the campaign and Russia issues,” he told the Committee.

The Minority report ends with a remarkable statement: it ties the specific timing of McCabe’s testimony to Mr. Trump’s going after not only McCabe but also the FBI’s General Counsel Jim Baker. Recall that Baker was present during McCabe’s testimony, was cited as a witness by McCabe for important events, and he was also then told by the Committee that he may be called as a witness. Trump’s tweets followed within days. The report states:

Only three days after McCabe’s testimony before the Committee, for which then-FBI General Counsel James Baker was present and during which the Majority indicated that they might also call him in as a witness, the President tweeted: “Wow, ‘FBI lawyer James Baker reassigned,’ according to @FoxNews”.  Trump turned his sights on McCabe later the same afternoon.

Whether such efforts by the president could be a form of witness tampering is a matter that has been discussed before at Just Security and elsewhere. If what inspired Trump was that he had been specifically informed of McCabe’s congressional testimony and the connection to the FBI General Counsel as a potential witness, it would be alarming. That said, there are other plausible explanations for the timing of Trump’s tweets that Saturday. Also within days before the president’s tweets, news outlets had raised different questions about the FBI General Counsel that could have inspired the president as well. Still, this all leaves obvious questions to be asked about the Committee’s possible communications with the White House and about Trump’s motivations. The Minority report appropriately points in the direction of those questions.

One thing is certain. There are several data points to add to Just Security‘s obstruction of justice Timeline. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.