January 29, 2018
By Hand
Confidential
John M. Dowd
Attorney at Law
Washington, D.C. 20015
Robert S. Mueller
Special Counsel
United States Department of Justice
Washington, D.C. 20024
Re: Request for Testimony on Alleged Obstruction of Justice
Gentlemen:
This letter will address the recent request by your office for an interview with the President and our discussions with you concerning the same on November 21, 2017, and January 8, 2018.
In our conversation of January 8, your office identified the following topics as areas you desired to address with the President in order to complete your investigation on the subjects of alleged collusion and obstruction of justice:
Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
Lt. Gen. Flynn’s interview with the FBI regarding the same;
Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
The President’s meeting on February 14, 2017, with then-Director James Comey;
Any other relevant information regarding former National Security Advisor Michael Flynn;
The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
Information related to conversations with intelligence officials generally regarding ongoing investigations;
Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
The President’s reaction to the appointment of Robert Mueller as Special Counsel;
The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.
It is our understanding that the reason behind the request for the interview is to allow the Special Counsel’s office to complete its report. After reviewing the list of topics you presented, it is abundantly clear to the undersigned that all of the answers to your inquiries are contained in the exhibits and testimony that have already been voluntarily provided to you by the White House and witnesses, all of which clearly show that there was no collusion with Russia, and that no FBI investigation was or even could have been obstructed.
It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.
Nevertheless, the President’s strong desire for transparency indicated the need to obtain an honest and complete factual report from the Special Counsel, which would sustain and even benefit the Office of the President and the national interest throughout his time in office. Thus, full cooperation was in order, and was in fact provided by all relevant parties.
We express again, as we have expressed before, that the Special Counsel’s inquiry has been and remains a considerable burden for the President and his Office, has endangered the safety and security of our country, and has interfered with the President’s ability to both govern domestically and conduct foreign affairs. This encumbrance has been only compounded by the astounding public revelations about the corruption within the FBI and Department of Justice which appears to have led to the alleged Russia collusion investigation and the establishment of the Office of Special Counsel in the first place.2The Special Counsel acknowledged that he was aware of and understands this burden and, accordingly, has committed to expedite his effort.
Counsel for both sides developed an informal, confidential, and cooperative relationship to expedite the conclusion of the inquiry. It was agreed that all conversations were confidential and “off the record” so as to encourage candor and engagement as opposed to adversarial hostility. It was agreed that each side could call or meet at any time to facilitate the exchange of information. We agreed on the parameters of the inquiry and that if anything changed, the Special Counsel would notify us before proceeding.
We all remain in agreement that your office has received unprecedented access and voluntary cooperation in the collection of all documents requested from the White House, the Donald J. Trump For President, Inc. (the “Campaign”), and individual witnesses, and that our offices have developed a collegial and professional working relationship which encourages honesty and candor. Further, we all agree that your office and the Congressional Committees have received the full cooperation and testimony of both present and former White House staff members, including White House Counsel, as well as the President’s most senior advisers and his most senior Campaign employees. The majority of that information could have been rightfully withheld on multiple privilege grounds, including but not limited to the presidential communications privilege
We cannot emphasize enough that regardless of the fact that the executive privilege clearly applies to his senior staff, in the interest of complete transparency, the President has allowed — in fact, has directed — the voluntary production of clearly protected documents. This is because the President’s desire for transparency exceeded the policy purposes for the privilege under the circumstances. Without question, the privilege “attaches not only to direct communications with the President, but also to discussions between his senior advisors, who must be able to hold confidential meetings to discuss advice they secretly will render to the President.”
The privilege applies and is available for the President to claim here because “restricting the presidential communications privilege to communications that directly involve the President will impede the President’s ability to perform his constitutional duty.”
[C]ommunications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President. Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given to the President.
The privilege applies to communications authored or solicited and received by members of an immediate White House adviser’s staff who are responsible for advising the President.
As you know, under our system of government, the President is not readily available to be interviewed. Ample academic and jurisprudential material supports this important principle. Moreover, as we have indicated in our meetings, we are reminded of our duty to protect the President and his Office. Thus, in deciding whether to advise the President to be interviewed, we are guided by the controlling law in this Circuit, In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (the “Espy” case), that those seeking information from the President must “demonstrate with specificity why it is likely that the subpoenaed materials [here, his testimony] contain important evidence and why this evidence, or equivalent evidence, is not practically available from another source.”
Although there is not a lot of case law directly on point concerning the issue at hand, scholars have noted that the law here is clear, being that the “[Espy] two prong analysis developed·as the D.C. Circuit construed the meaning of a ‘demonstrated, specific need’ over the course of two decades,” and that while “the first requirement is essentially the equivalent of Federal Rule of Criminal Procedure 17(c) …. [t]he second requirement entails detailed documentation of efforts to obtain the needed information from other sources:”
In an effort to provide complete transparency, the President waived the obviously applicable privileges where appropriate in order to allow both the Congress and the Special Counsel to see all relevant documents. The documents provided include notes from and concerning advisors at the highest level. They reflect contemporaneous corroboration, which is an inherently and fundamentally weightier type of evidence — unlike former FBI Director James Comey’s (Mr. Comey’s) testimony. Perhaps most notably, your office has already been given access to conversations with the President himself. Case law in this district teaches that for the presumptive privilege to possibly be overcome and the requisite need and specificity sufficiently demonstrated, the need for the exact “content of a conversation” involving high-level White House advisers must be “undeniable” and “the only sources of that testimony are those persons participating in the conversations.” The records and testimony we have, pursuant to the President’s directive, already voluntarily provided to your office allow you to delve into the conversations and actions that occurred in a significant and exhaustive manner, including but not limited to the testimony of the President’s interlocutors themselves. In light of these voluntary offerings, your office clearly lacks the requisite need to personally interview the President. The information you seek is “practically available from another source,” and your office, in fact, has already been given that other source.
We have, pursuant to the standard set forth in the Espy case, carefully reviewed your list of questions and the topics you have identified, and we have concluded that your office has already received the answers from the documents and testimony which have been voluntarily and expeditiously provided by the President, the White House, his staff, the Trump campaign and the Trump organization. This letter will respond to your inquiries, and direct your attention to the evidence and testimony that is already in your possession.
RESIGNATION OF LT. GEN. FLYNN
In our most recent meeting, you mentioned the possibility of obstruction in connection with the case of former National Security Advisor and Lt. Gen. Michael Flynn (Ret.) “Lt. Gen. Flynn”), and that you desired to speak with the President specifically regarding his conversation with then-Director Comey one day after the President fired Lt. Gen. Flynn for lying to the Vice President. You have already been provided the testimony of White House Counsel and his extensive internal file memo as well as the testimony and notes of the President’s Chief of Staff, Reince Priebus “Mr. Priebus”), and other members of the White House Counsel’s office. According to former Mr. Comey, the following occurred at a February 14, 2017, meeting between him and the President:
The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” … I did not say I would “let this go.”
The White House denied and refuted that the President said these words to Mr. Comey. We decline to recommend to the President that he be interviewed on this subject for many reasons.
What follows is a non-exhaustive list:
First, the President was not under investigation by the FBI;
Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.
Third, as a matter of law, even if there had been an FBI investigation there could have been no actionable obstruction of said investigation under 18 U.S.C. § 1505, since an FBI investigation is not a “proceeding” under that statute. Since there is no cognizable offense, no testimony is required;
Fourth, both Mr. Comey and Mr. McCabe subsequently testified under oath that therewas “no effort to impede” the investigation. Mr. McCabe’s testimony followed Mr.Comey’s testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something . . . for a political reason. That would be a very big deal. It’s not happened in my experience.”
Fifth, the investigation of Lt. Gen. Flynn proceeded unimpeded and actually resulted in a charge and a plea;
Sixth, assuming, arguendo, that the President had made a comment to Mr. Comey that Mr. Comey claimed to be a direction, as the chief law enforcement official pursuant to Article II of the United States Constitution, the President had every right to express his view of the case;
Seventh, your office already has an ample record upon which to base your findings of no obstruction. As such there is no demonstrated, specific need for the President’s responses; and,
Eighth, by firing Lt. Gen. Flynn, the President actually facilitated the pursuit of justice. He removed a senior public official from office within seventeen days, in the absence of any action by the FBI and well before any action taken by your office.
To briefly review the relevant law and facts, § 1505 of Title 18, United States Code, as amendedby the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress.22Under § 1505, a “pending proceeding” is limited only to agencies with rule-making or adjudicative authority. The investigation of Lt. Gen. Flynn was being conducted by the FBI, which possesses only investigative authority, not adjudicative; it cannot conduct “proceedings” within the cognizance of§ 1505.23No court has ever held than an FBI investigation constitutes a § 1505 proceeding, and the U.S. Attorney’s Manual makes clear that “investigations by the Federal Bureau of Investigation (FBI) are not §1505 proceedings.” The DOJ has even expressly acknowledged as much to the United States Court of Appeals for the Fourth Circuit. As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.
The following facts are taken from information voluntarily provided to your office or from information that is publicly available. These facts further demonstrate that the President did not obstruct justice in any manner concerning Lt. Gen. Flynn.
According to Acting Attorney General Sally Yates (“Ms. Yates”), on January 24, 2017, Lt. Gen. Flynn was interviewed by the FBI. According to reports, “The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.”
This account of the FBl’s interview and subsequent conclusions was later confirmed by the closed-door congressional testimony of Mr. Comey. Mr. Comey also confirmed in his May 3, 2017, Senate Intelligence Committee testimony that he “did participate in conversations about that matter” with Ms. Yates, referring to the FBl’s interview of Lt. Gen. Flynn. before she conveyed the information to the White House in the days that followed.
On January 26, 2017, Ms. Yates met with White House Counsel Don McGahn (“Mr. McGahn”). As outlined by Mr. McGahn in his White House Counsel’s Office memo dated February 15, 2017, “Yates expressed two principal concerns during the meeting: (1) that Flynn may have made false representations to others in the Administration regarding the content of the calls; and (2) that Flynn’s potentially false statements could make him susceptible to foreign influence or blackmail because the Russians would know he had lied.” “Yates further indicated that on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had made to Spicer and the Vice President.”
On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”
On January 27, 2017, at Mr. McGahn’s request, Ms. Yates and Mr. McGahn had another meeting. Importantly, DOJ leadership declined to confirm to the White House that Lt. Gen. Flynn was under any type of investigation. According to Mr. McGahn’s memo:
During the meeting, McGahn sought clarification regarding Yates’s prior statements regarding Flynn’s contact with Ambassador Kislyak. Among the issues discussed was whether dismissal of Flynn by the President would compromise any ongoing investigations. Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn. (Emphasis added.)
Further supporting the White House’s understanding that there was no FBI investigation that could conceivably have been impeded, “Yates also indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak.” In other words, the DOJ expressed that the White House could make public that Lt. Gen. Flynn’s calls with Ambassador Kislyak had been surveilled. It seems quite unlikely that if an ongoing DOJ investigation of Lt. Gen. Flynn was underway, the DOJ would approve its key investigation methods and sources being publicized.
Your office is also aware that, in the week leading up to Lt. Gen. Flynn’s termination and the President’s alleged comments to Mr. Comey, Lt. Gen. Flynn had told both White House Counsel and the Chief of Staff at least twice that the FBI agents had told him he would not be charged. The first instance occurred during a discussion at the White House on February 8, 2017, between Mr. McGahn, Mr. Priebus, Mr. John Eisenberg and Lt. Gen. Flynn. “Priebus led the questioning” and “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak.” Lt. Gen. Flynn’s “recollection was inconclusive” and he responded that “he either was not sure whether he discussed sanctions, or did not remember doing so.” “Priebus specifically asked Flynn whether he was interviewed by the FBI. Flynn stated that FBI agents met with him to inform him that their investigation was over.” The second occurred on a telephone call on February 10, 2017, wherein Mr. McGahn, Mr. Priebus, and the Vice President confronted Lt. Gen. Flynn concerning his discussions with Ambassador Kislyak. As recorded in Mr. McGahn’s memo, “On the phone, Flynn is asked about the FBI investigation to which he says that the FBI told him they were closing it out.”
On February 10, 2017, upon confirming the true content and nature of Lt. Gen. Flynn’s three telephone calls with Ambassador Kislyak, and in light of his statements to them and the Vice President, White House Counsel Don McGahn and Chief of Staff Reince Priebus advised the President that Lt. Gen. Flynn “had to be let go.” As a result, on February 13, 2017, the President accepted Lt. Gen. Flynn’s resignation.
According to Mr. Comey’s testimony, the next day, on February 14, 2017, the President made comments expressing his “hope” that Mr. Comey “could see [his] way to letting this go” in reference to the situation with Lt. Gen. Flynn. The White House disputed Mr. Comey’s recollection of that conversation. Regardless, the White House Counsel and Chief of Staff, as well as others surrounding the President, had every reason to believe at that time that the FBI was not investigating Lt. Gen. Flynn, especially in light of the fact that Lt. Gen. Flynn was allowed to keep his active security clearance.
For all intents, purposes, and appearances, the FBI had accepted Flynn’s account; concluded that he was confused but truthful; decided not to investigate him further; and let him retain his clearance. As far as he could tell, the President was the only one who decided to continue gathering and reviewing the facts in order to ascertain whether Lt. Gen. Flynn’s actions necessitated severe and consequential action — removal from office. The President ordered his White House Counsel to continue its review of the situation, which ultimately concluded that Lt. Gen. Flynn had misled the Vice President. The President did not obstruct justice. To the contrary, he facilitated it.
We emphasize these points because even if an FBI investigation constituted a ‘’proceeding” under the statute, which it does not, the statute also requires intent to obstruct. There could not possibly have been intent to obstruct an “investigation” that had been neither confirmed nor denied to White House Counsel, and that they had every reason (based on Lt. Gen. Flynn’s statements and his continued security clearance) to assume was not ongoing. Further, by insisting on and accepting Lt. Gen. Flynn’s public resignation as national security adviser, the President expedited the pursuit of justice while the DOJ and the FBI were apparently taking no action.
So, to reiterate, within seventeen days of first being advised by DOJ leadership concerning Lt. Gen. Flynn, and within just three days of the President’s senior team confirming the requisite facts, the President took decisive action and directed Lt. Gen. Flynn, his highest ranking national security advisor, to resign. The President did so in spite of the fact that the FBI had, apparently, decided not to pursue the case further. The President did so in spite of the great political cost to himself. Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President. His actions speak louder than any words.
While Mr. Comey may or may not have misunderstood, misinterpreted or misremembered the President’s alleged comments, the “hard” evidence already voluntarily provided to your office shows not only that the President most certainly did not obstruct justice, but that at the time, Mr. Comey certainly did not believe that he had in any way obstructed justice. If Mr. Comey had believed otherwise, he would have opened an obstruction investigation and directed his investigators accordingly. He did not do so.
What the entire allegation of obstruction amounts to, then, is a critical examination of the conversation that occurred between the President and then-Director Comey on the night of February 14, 2017, in light of Mr. Comey’s self-serving testimony and leaked memos. Again, according to Mr. Comey’s prepared testimony, the following occurred during that February 14 meeting:
The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” (In fact, I had a positive experience dealing with Mike Flynn when he was a colleague as Director of the Defense Intelligence Agency at the beginning of my term at FBI.) I did not say I would “let this go.”
On June 8, 2017, Mr. Comey was asked about that conversation in great detail. While acknowledging that the President only said “hope,” Mr. Comey said he took it as a direction. However in his Senate Judiciary Committee testimony he responded as follows:
RISCH: He did not direct you to let it go.
COMEY: Not in his words. no.
RISCH: He did not order you to let it go.
COMEY: Again, those words are not an order.
RISCH: He said “I hope.” Now, like me you probably did hundreds of cases, maybe thousands of cases charging people with criminal offenses, and, of course, you have knowledge of the thousands of cases out there that where people have been charged. Do you know of any case where a person has been charged for obstruction of justice, or for that matter, any other criminal offense, where . . . they said or thought they “hoped” for an outcome?
COMEY: I don’t know well enough to answer. And the reason I keep saying his words is I took it as a direction. It is the president of the United States with me, alone, saying ”I hope” this. I took it as this is what he wants me to do. I didn’t obey that, but that’s the way I took it.
RISCH: You may have taken it as a direction, but that’s not what he said. He said — he said ”I hope.”
COMEY: Those are the exact words, correct.
RISCH: You don’t know of anyone that has ever been charged for hoping something, is that a fair statement?
COMEY: I don’t, as l sit here.
The White House refuted Mr. Comey’s account in a statement:
“While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation. including any investigation involving General Flynn. The president has the utmost respect for our law enforcement agencies. and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.”
Even if we were to ignore the White House’s version of events and take Comey’s “understanding” at face value, Mr. Comey did not confront the President, nor did he report the “attempted obstruction.” He also did not “let this go,” and he received no further communication from the President or any other person from the White House on the matter.
Mr. Comey himself, very significantly, admitted that he did nothing in response to the so-called “direction” except make self-serving notes. He admitted he did not raise an objection with the President to what he “understood.” He did not open an obstruction investigation of the President. To the contrary, he told the President in their subsequent March 30, 2017, phone call “that we were not personally investigating the President.” Had he really understood the President to be attempting to obstruct justice, undoubtedly he would not have made that would-be false statement.
In his testimony Mr. Comey admitted that not only did he fail to confront the President, at the time he also never told the Attorney General, the Deputy Attorney General or even the FBI agents then conducting the counterintelligence investigation on collusion that he believed he had received any such direction from the President. Instead, he claimed he only told his senior FBI leadership, but did nothing to act on it. Interestingly, Mr. Comey claimed he did not tell the Attorney General because he thought that the Attorney General was going to recuse himself. While this is certainly a significant assumption by Mr. Comey and raises significant questions, it still does not justify failing to tell the DOJ about the alleged conversation — if Mr. Comey truly perceived it the way he now claims he did. And, two days after Mr. Comey was removed, the most senior member of his FBI leadership, Deputy FBI Director Andrew McCabe, contradicted Mr. Comey’s account by testifying that, “ there has been no effort to impede our investigation to date.” Again, the contemporaneous testimony of his senior colleague, and the inaction of Mr. Comey himself, all make clear that at the time of the conversation in question Mr. Comey did not really understand the President to be attempting an obstruction of justice. Recall that Mr. Comey’s June 8, 2017 testimony (after his termination) about the conversation followed both Mr. McCabe’s testimony and Mr. Comey’s own earlier testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something … for a political reason. That would be a very big deal. It’s not happened in my experience.”
In addition, the New York Times reported that following a March 30, 2017, telephone call with the President, Mr. Comey said “that his relationship with the president and the White House staff was now in the right place. ‘I think we’ve kind of got them trained,’ Mr. Wittes said, paraphrasing what Mr. Comey told him.”On March 8, 2017, Mr. Comey told an audience at a cybersecurity conference, ‘You’re stuck with me for another 6-1/2 years,’ indicating he expects to serve the remainder of his 10-year term” — and also belying any sentiment that he was suffering under the pressure of a Presidential directive he was refusing to execute.
All of these facts refute the novel account Mr. Comey articulated only after he was fired and after he had, by his own admission, leaked information in order to “prompt the appointment of a special counsel” — despite never suggesting, while in his position as FBI Director, that a special counsel was necessary or that obstruction had occurred.
FIRING OF FBI DIRECTOR COMEY
You have asked for evidence related to the firing of Mr. Comey, including information on with whom the President consulted in advance of the decision to let Mr. Comey go, in an attempt to see if this firing, in and of itself, might constitute obstruction of justice. Again, we note that you have been voluntarily provided with abundant materials and possess all of the answers to your questions, including how the President evaluated Mr. Comey’s performance. As such, and pursuant to Espy, we respectfully decline to allow our client to testify. As is now apparent with the benefit of subsequent developments, the firing of Mr. Comey has led to the discovery of corruption within the FBI at the highest levels.
As you know, and as Mr. Comey himself has acknowledged, a President can fire an FBI Director at any time and for any reason. To the extent that such an action has an impact on any investigation pending before the FBI, that impact is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice here. No President has ever faced charges of obstruction merely for exercising his constitutional authority. A President can also order the termination of an investigation by the Justice Department or FBI at any time and for any reason. Such an action obviously has an impact on the investigation, but that is simply an effect of the President’s lawful exercise of his constitutional power and cannot constitute obstruction of justice. We remind you of these facts simply because even assuming, arguendo, that the President did order the termination of an investigation (and the President, along with Mr. Comey in his testimony and in his actions, have made it clear that he did not) this could not constitute obstruction of justice.
The following facts are based on Mr. Comey’s June 8, 2017, testimony before the Senate Intelligence Committee as well as Attorney General Jeff Sessions’ June 13, 2017, testimony.
Based on this testimony, the President did not commit obstruction of justice. The only possible evidence, taken in the light most favorable to your office, is the single memo from Mr. Comey. The circumstance in which this memo arose — several months after the conversation and only after Mr. Comey was fired in disgrace — raises serious doubts about its veracity, if indeed it even exists. In addition, Mr. Comey could possibly face legal action for the unauthorized leaking of conversations with the President to the media, an admission especially noteworthy given his refusal to comment on conversations with the President in, for example, his March 20, 2017, congressional testimony, during which he refused to answer questions about conversations with the President, indicating that such information should not be shared publicly.
There is no other evidence to validate Mr. Comey’s claims since Attorney General Sessions never substantiated any of the allegations that the President fired Mr. Comey because of the Russian investigation. To the contrary, Attorney General Sessions stated that his recommendation to the President was that Mr. Comey be fired because of the way he handled the Clinton email investigation and refusal to admit his mistakes.
It is also worth responding to the popular suggestion that the President’s public criticism of the FBI either constitutes obstruction or serves as evidence of obstruction. Such criticism ignores the sacred responsibility of the President to hold his subordinates accountable — a function not unlike public Congressional oversight hearings. After all, the FBI is not above the law and we are now learning of the disappointing results of a lack of accountability in both the DOJ and FBI.
The fact is that Deputy Attorney General Rod Rosenstein “Mr. Rosenstein”) expressed precisely the same concerns as the President regarding Mr. Comey in his May 9, 2017, Memorandum to Attorney General Jeff Sessions:
The Federal Bureau of Investigation has long been regarded as our nation’s premier federal investigative agency. Over the past year, however, the FBI ‘s reputation and credibility have suffered substantial damage, and it has affected the entire Department of Justice. That is deeply troubling to many Department employees and veterans, legislators and citizens. To summarize, the Deputy Attorney General and the Attorney General both agreed, in writing, that Mr. Comey should be fired, for reasons unrelated to any investigation about Russian interference. To quote again from Mr. Rosenstein’s May 9, 2017, memo:
Although the president has the power to remove an FBI director, the decision should not be taken lightly. I agree with the nearly unanimous opinions of former department officials. The way the director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.
As you also know, far from merely signing off on a Presidential decision or taking a weak or indirect action indicating a tacit or pressured approval, Mr. Rosenstein actually helped to edit Mr. Comey’s termination letter and actively advised the President accordingly. It is unthinkable that a President acting (l) under his Constitutional authority; (2) on the written recommendation and with the overt participation of his Deputy Attorney General; and (3) consistent with the advice of his Attorney General, to fire a subordinate who has been universally condemned by bipartisan leadership could then be accused of obstruction for doing so.
Many in the media have relied on mischaracterizations of the President’s remarks in a May 11, 2017, interview with Mr. Lester Holt of NBC News, to claim or suggest that in that interview, the President stated that the real reason he fired Comey is the Russia investigation. Unfortunately, so has Mr. Comey. He testified that: “I [take] the president, at his word, that I was fired because of the Russia investigation.” Regrettably, no one asked Mr. Comey when he thought the President had actually said any such thing because, in fact, the President did not ever say such a thing.
Because it has been so widely misreported and mischaracterized, we believe it is important to present the exchange in its entirety. What the President actually said was this: “I was going to fire Comey knowing there was no good time to do it. 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.” The President and Mr. Holt then talk over each other for approximately a minute, before the President completed his original thought by saying,
As far as I’m concerned, I want that thing [the Russia investigation] to be absolutely done properly. When I did this now, I said I probably maybe will confuse people. Maybe I’ll expand that- you know, I’ll lengthen the time because it should be over with. It should — in my opinion, should’ve been over with a long time ago because it — all it is an excuse. But I said to myself I might even lengthen out the investigation. But I have to do the right thing for the American people. He’s the wrong man for that position. Later in the interview, the following exchange took place:
PRESIDENT: I want very simply a great FBI director.
HOLT: And will you expect if they would — they would continue on with this investigation ….
PRESIDENT: Oh, yeah, sure. I expect that.” Reading the entire interview, the fair reading of the President’s remarks demonstrates that the President:
Fired Mr. Comey for incompetence; Knew, based on the timing of the firing, that his action could actually lengthen the Russian investigation and in any event would not terminate it; Demonstrated, with his comments to Mr. Holt about the Russia investigation, that he was not concerned about the continuation of any current investigation, even a now-lengthier investigation, because he knows there is no “collusion” to uncover; and Made it clear that he was willing, even expecting, to let the investigation take more time, though he thinks it is ridiculous, because he believes that the American people deserve to have a competent leader of the FBI.
LAVROV MEETING OF MAY 9, 2017
There have also been press reports — citing anonymous sources — about comments the President allegedly made during a May 9, 2017, meeting with Russian government officials that Comey was a “real nut job’’ and that “great pressure because of Russia” has been “taken off” him. Assuming arguendo the President said any such things, it (i) does not establish that the termination was because of the Russia investigation (regardless of the validity of such an opinion, presumably any President would not want someone he considered a “nut job” running the FBI); and (ii) in any event would be irrelevant to the constitutional analysis. A short, separate, classified response addressing this subject will be submitted to the Office of Special Counsel.
INTELLIGENCE CHIEFS
On a related note, you had expressed a desire for information related to conversations with intelligence officials generally regarding ongoing investigations. The intelligence chiefs themselves have already very clearly testified on the subject before Congress. In the words of Director Rogers, “In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate, and to the best of my recollection during that same period of service I do not recall ever feeling pressured to do so.” Director Coats testified in a very similar vein: “In my time of service, which is interacting with the President of the United States or anybody in his administration, I have never been pressured — I have never felt pressured — to intervene or interfere in any way with shaping intelligence in a political way or in relation to an ongoing investigation.”
STATEMENT OF JULY 8, 2017, TO THE NEW YORK TIMES
You have received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr. His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion. This subject is a private matter with the New York Times. The President is not required to answer to the Office of the Special Counsel, or anyone else, for his private affairs with his children. In any event, the President’s son, son-in-law, and White House advisors and staff have made a full disclosure on these events to both your office and the congressional committees.
CONCLUSION
Accordingly, based upon the foregoing, we have advised the President that, pursuant to the standard clearly set forth in Espy and its progeny, your inquiry thus far demonstrates that no obstruction of the Flynn investigation or Russian collusion investigation appears to have occurred, and that your office has already been provided the voluminous testimony and documentation from which this conclusion is clearly drawn. Therefore, your office lacks “a focused demonstration of need” for the President’s responses, which is required by law “even when there are allegations of misconduct by high-level officials.”
Again, the only statute implicated here is 18 U.S.C. § 1505, but its application to the President is a constitutional and legal impossibility, and even if it were applicable the elements for obstruction simply cannot be satisfied. For further detail and analysis on this point, we respectfully refer you to our letter to your office of June 23, 2017.
What all of the foregoing demonstrates is that, as to the questions that you desire to ask the President, absent any cognizable obstruction offense, and in light of the extraordinary cooperation by the President and all relevant parties, you have been provided with full responses to each of the topics you presented, obviating any need for an interview with the President. As all of the evidence demonstrates, every action that the President took was taken with full constitutional authority pursuant to Article II of the United States Constitution. As such, these actions cannot constitute obstruction, whether viewed separately or even as a totality. As recognized by the Framers in Article II and as articulated in jurisprudence, the President’s prime function as the Chief Executive ought not be hampered by requests for interview. Having him testify demeans the Office of the President before the world. The imposition on the time and attention of the President caused by this inquiry has already inflicted unwarranted damage on the President and his Office. This imposition is one reason why the President directed the most extensive and transparent cooperation with the numerous requests of the Special Counsel. The time and attention that would be required to prepare for an interview is significant and would represent a continued imposition that would directly impact the nation.
More is at stake here than just this inquiry, more even than just the Presidency of Donald J. Trump. This inquiry, and the precedents set herein, will also impact the Office of the President of the United States of America in perpetuity. Ensuring that the Office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance. Of course, the President of the United States is not above the law, but just as obvious and equally as true is the fact that the President should not be subjected to strained readings and forced applications of clearly irrelevant statutes. In order to facilitate a fair process, as a practical solution, without waiver of the President’s constitutional and statutory privileges or objections, and in exchange for a rapid conclusion, we are willing to receive any further questions and provide you the answers to help you complete your report and resolve any other remaining questions you might have. We are prepared to meet to discuss a final list of questions that you need to be answered so that the Nation may move forward, and so that we may preserve the dignity of the Office of the President of the United States.
Thank you for your courtesy and cooperation,
Very Respectfully,
John M. Dowd
Jay A. Sekulow
Counsel to the President