Fat case file

Comey handed Mueller a fat case file on Trump

But legal experts say it’s not clear Mueller has a slam-dunk obstruction of justice case against the president.

By DARREN SAMUELSOHN

James Comey refused to say on Thursday if he believed President Donald Trump obstructed justice. But the ousted FBI director gave Robert Mueller plenty to work with as the special counsel investigates whether the president or his allies committed any crimes.

During two riveting hours before the Senate Intelligence Committee, Comey testified Trump requested his "loyalty," urged him to end a probe into then-National Security Adviser Michael Flynn and then, while stewing over what the Russia investigation was doing to his administration, the president fired him.

Comey declined to render his own legal opinion as to whether what Trump did was illegal, but he did explain that this critical question — along with the notes he took from his conversations with the president — now resides with Mueller.

“I don't think it's for me to say whether the conversation I had with the president was an effort to obstruct,” Comey said. “I took it as a very disturbing thing, very concerning, but that's a conclusion I'm sure the special counsel will work towards to try and understand what the intention was there, and whether that's an offense.”

Mueller himself may not have been surprised by Comey’s much-anticipated Senate testimony since he’d already been briefed on what would be said. But with Comey’s story now widely aired publicly, it did give lawmakers, as well as veteran prosecutors and defense attorneys, a chance to reflect on what Mueller is now working with as he gets started on a probe that essentially has an unlimited budget and all the time he needs to go in whatever directions he needs to.

Samuel Buell, a former federal prosecutor who worked with one of Mueller’s newly hired top deputies prosecuting Enron executives in the early 2000s, said Comey’s testimony “greatly sharpened the focus” on questions surrounding the obstruction of justice controversy that now sits on Trump’s doorstep.

“All the other events lend emphasis, meaning and context to that event but that event is the real issue,” he said of Trump’s Feb. 14 Oval Office meeting during which the president allegedly pulled Comey aside and suggested the FBI director should “let this go” concerning the Flynn probe.

Comey’s written testimony — released Wednesday by the Senate Intelligence Committee — also described two other phone calls he had with Trump in which the president again brought up the investigation into Flynn.

Neil MacBride, a former U.S. attorney and Obama-era associate deputy attorney general, said he took away from Comey’s testimony that the FBI director thought his job “might hang in the balance” because of the president’s requests.

“Mueller needs to decide if this was just an outsider president naively breaching established D.C. protocols, or whether the three conversations were done ‘corruptly’ to pressure Comey to wind down the Flynn investigation,” MacBride said. “While Comey was careful not to say explicitly it was the latter, i.e., potential obstruction of justice, as of today that's hands-down the most important question Mueller faces in the entire investigation.”

Several sources interviewed Thursday after Comey concluded his public testimony said they hadn’t heard enough for Mueller to make a slam-dunk case before either a judge or jury.

“It’d be much more compelling to a fact finder if Comey said, ‘Yeah, I felt completely intimidated. I decided to drop the case because of it,’” said Peter Zeidenberg, who served on the Justice Department’s special prosecution team during the George W. Bush-era Valerie Plame Wilson investigation and now works as a partner at Arent Fox.

Still, Zeidenberg said Comey’s explanation that he believed Trump was directing him to drop the Flynn investigation could be significant. “While not dispositive, this fact strengthens a potential obstruction case,” he said.

William Jeffress, a white-collar defense attorney who represented Vice President Dick Cheney’s top aide, I. Lewis “Scooter” Libby, during the Wilson investigation, agreed the Comey testimony stopped short of making an air-tight case for an obstruction of justice charge.

“But it makes very clear that Trump has no appreciation or respect for the independence of law enforcement in our system,” he said. “And calling out Trump’s lies was very forceful and damaging to the president.”

Trump’s personal attorney, Marc Kasowitz, publicly refuted Comey’s testimony later Thursday and insisted several parts of it were inaccurate. The president’s Republican allies tried another defense, saying Trump was just naïve in his interactions with his own FBI director. “The president’s new at this,” House Speaker Paul Ryan told reporters during a morning news conference while Comey was still testifying. “He’s new at government.”

But those arguments, according to both prosecutors and defense attorneys, wouldn’t be very effective.

“That the president, through his attorney, is flatly denying the occurrence of the key conversation — in the face of clear testimony from one of the most credible witnesses one could ever come across — underlines the seriousness of this,” said Buell, now a law professor at Duke University.

Invoking then-President Bill Clinton’s infamous grand jury testimony in the investigation over Monica Lewinsky, which ultimately led to the Democrat’s House impeachment, Buell added of the Trump lawyer’s defense: “This is reminiscent of ‘I did not have sexual relations with that woman ...’”

The Trump backers who came to the president’s aid by noting his inexperience in governing also are missing a key legal point, Zeidenberg said.

“You do not need to understand the obstruction of justice statute to violate it,” he said. “You still violated the law.”

Those kinds of mistakes, he added, can put politicians in hotter water than the original crime that prompted the investigation.

“The fact that he’s a bull in the China shop, that defense doesn’t really strike me as one that’d be successful,” Zeidenberg said. “That’s why people like that who are reckless get in trouble, because they do foolish, stupid things like try to get the director of the FBI to drop an investigation. That’s how you get yourself in big trouble by not knowing the rules.”

Mueller hasn’t spoken publicly about the Russia-Trump investigation since his appointment, and his spokesman on Thursday declined comment when asked about Comey’s testimony. That silence, designed to minimize speculation about his intentions, has left plenty of room for Congress, where a handful of Republican-led committees have launched their own probes.

North Carolina GOP Sen. Richard Burr, the chairman of the Intelligence Committee, told reporters after the Comey hearing that he hopes to meet with Mueller next week “to work out clear pathways for both investigations, his and ours to continue, to work on deconfliction of potential testimony.”

Comey in his remarks said he didn’t think Congress would get in the way of Mueller. “I’m sure you’ll be able to work it out with him to run it in parallel,” the former FBI director said.

Only a few details on the status of Mueller’s probe came out in dribs during Wednesday’s hearing in front of the same Senate committee. There, acting FBI Director Andrew McCabe confirmed that he’s spoken with Mueller and added that the special counsel and his team “are currently in the process of determining what that scope is” of their investigation.

McCabe, who replaced Comey last month, also said “determining exactly where those lanes in the road are, where does Director Mueller's scope overlap into our pre-existing and long-running Russian responsibilities, is somewhat of a challenge at the moment.”

When asked by lawmakers to speak more openly about the Mueller investigation, Deputy Attorney General Rod Rosenstein urged the committee to work with the special counsel as their “point person” for deciphering what DOJ and FBI officials can say in public about the probes.

Rosenstein also acknowledged that while he had the authority to remove Mueller under DOJ regulations, he insisted it was unlikely to happen. “Although it's theoretically true that there are circumstances where he could be removed by the acting attorney general, which, for this case at this time, is me, your assurance of his independence is Robert Mueller's integrity and Andy McCabe's integrity and my integrity,” he said.

Mueller’s probe will pick up several outstanding lines of inquiry surrounding the 2016 Trump campaign, including Flynn’s lobbying on behalf of a Turkish businessman with ties to Russia and former campaign manager Paul Manafort’s business dealings with a pro-Kremlin government in the Ukraine. It’s also fair game to examine the hacking of former Clinton campaign chairman John Podesta’s emails and their release in drip-drip fashion during the peak of the campaign on WikiLeaks.

“I know everyone wants to talk about obstruction of justice, but there’s so many problematic legal issues,” said one prominent white-collar defense attorney who requested anonymity because his firm was working for a client caught in the investigation. “That’s not the only thing Mueller might have at the end of the day.”

But thanks to Comey’s public testimony about his meetings with Trump and his firing, Buell said the Mueller probe seems destined to cover this ground. “It is almost certain,” he said, “that any conclusion of that investigation will include, at the least, a statement from the special counsel to the Justice Department about whether the president committed a federal crime.”