The New York Times reports that special counsel Robert Mueller has obtained an “early draft” of President Trump’s letter stating the reasons for firing James Comey. Times reporters Michael Schmidt and Maggie Haberman inform us that “the circumstances and reasons for the firing are believed to be a significant element of Mr. Mueller’s investigation, which includes whether Mr. Trump obstructed justice by firing Mr. Comey.”
The Times would love it if Mueller’s dream team of anti-Trump lawyers were to present an obstruction of justice claim against President Trump. However, the Times’ story undercuts such a claim — inadvertently, I assume.
Before explaining why, let’s discuss Trump’s “early draft.” I can’t discuss it much because Schmidt and Haberman say they have not seen it. Instead, they have interviewed “a dozen administration officials and others briefed on the matter.” Nothing in their report suggests the draft contains material that would support an obstruction of justice claim.
Schmidt and Haberman suggest the draft shows that Trump was angry with Comey for not saying publicly what he had told Trump privately — namely, that the president was not under investigation in the FBI’s continuing Russia inquiry. This is no scoop. Trump has basically said as much publicly, although the letter that effectuated Comey’s firing used a far less plausible rationale — namely that Deputy Attorney Rosenstein was unhappy with Comey’s handling of the Hillary Clinton matter.
In any event, it’s difficult to see a valid obstruction of justice claim arising from the discharge of Comey for refusing to inform the public that, at present, the U.S. president was not under investigation.
The real scoop in the Times’ story appears towards the end. Schmidt and Haberman write that on May 8:
Mr. McGahn [the White Counsel] gave Mr. Miller [a top Trump adviser who worked on the “early draft” letter] a marked-up copy of the letter, highlighting several sections that he believed needed to be removed.
Mr. McGahn met again that same day with Mr. Trump and told him that if he fired Mr. Comey, the Russia investigation would not go away. Mr. Trump told him, according to senior administration officials, that he understood that firing the F.B.I. director might extend the Russia investigation, but that he wanted to do it anyway.
If Trump said this, then we should conclude that the firing of Comey was not an attempt to halt the Russia investigation. To the contrary, Trump made the move understanding that it might “extend” the investigation.
I’m not saying that it’s beyond the capability of Mueller’s dream team of anti-Trump lawyers to weave an obstruction of justice case against the president. I am suggesting that such a case likely would not pass the straight-face test.