Loose lips sink ships.
lot of news came out of Donald Trump’s interview with the New York Times on Wednesday. Trump’s statements wishing he had never selected Jeff Sessions as attorney general and his “red line“ in the Robert Mueller probe have made for the biggest headlines. There was one important point of information, though, that has been largely overlooked.
In his conversation with Times reporters Peter Baker, Michael Schmidt, and Maggie Haberman, Trump denied one of the most damning pieces of evidence in any potential obstruction of justice case against him. For what appears to be the first time on record, the president said he did not clear the room before allegedly suggesting that then–FBI Director Comey might want to drop the bureau’s probe into former National Security Adviser Michael Flynn.
From the Times:
BAKER: Did you shoo other people out of the room when you talked to Comey?
TRUMP: No, no.
BAKER: That time [inaudible] [Michael T.] Flynn —
TRUMP: No. That was the other thing. I told people to get out of the room. Why would I do that?
SCHMIDT: Did you actually have a one-on-one with Comey then?
TRUMP: Not much. Not even that I remember. He was sitting, and I don’t remember even talking to him about any of this stuff. He said I asked people to go. Look, you look at his testimony. His testimony is loaded up with lies, O.K.?
At this point, Trump’s granddaughter Arabella Kushner came in and told the reporters “Ni hao” upon being instructed by her grandfather to speak in Mandarin. When she left the room, the conversation veered into other subjects and the Times reporters didn’t ask any further on the record questions about the Comey meeting.
In Comey’s sworn written testimony to Congress, he said that Trump did order everyone to leave the room during that Feb. 14 Oval Office meeting—a recollection he memorialized in unclassified contemporaneous notes, which he immediately showed to other senior FBI officials. According to Comey, the officials in that initial meeting included Vice President Mike Pence, Deputy Director of the CIA Gina Haspel, Director of the National Counterterrorism Center Nick Rasmussen, Secretary of Homeland Security John Kelly, Attorney General Jeff Sessions, Senior Adviser Jared Kushner, and Chief of Staff Reince Priebus. Here’s Comey’s account:
The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone. I stayed in my chair. As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me. The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me. The President then excused him, saying he wanted to speak with me. …
After he had spoken for a few minutes about leaks, Reince Priebus leaned in through the door by the grandfather clock and I could see a group of people waiting behind him. The President waved at him to close the door, saying he would be done shortly. The door closed.
This is when Trump allegedly made the request for Comey to “see your way clear to letting this go, to letting Flynn go.”
“My impression was, something big is about to happen. I need to remember every single word that is spoken,” Comey testified regarding his thinking when Trump allegedly asked everyone else to leave the room. “My sense was the attorney general knew he shouldn’t be leaving, which is why he was lingering. And I don’t know Mr. Kushner well, but I think he picked up on the same thing. And so I knew something was about to happen that I needed to pay very close attention to.”
There are two reasons Trump’s denial in the Times interview is meaningful. First, the president’s alleged demand that he and Comey be left alone was perhaps the best indicator that Trump knew he was making an extraordinary, and perhaps illegal, request. Second, there were many other people in that Feb. 14 meeting who could potentially verify the accuracy of Comey’s account. Some of those people might not want to lie to federal investigators to protect the president.
One of those witnesses, Sessions, offered a partial account of the incident during congressional testimony last month. While he declined to describe what exactly Trump said in the meeting, repeatedly (and rather ludicrously) stating that his conversations with the president might be privileged, Sessions did acknowledge that everyone but Comey left the room. “We were there and I was standing there and without revealing any conversation that took place, what I recall is that I did depart and I believe everyone else did depart and Director Comey was sitting in front of the president’s desk and they were talking,” he said. Sessions also acknowledged that Comey had gone to him shortly thereafter to request that he never be left alone with the president again. “His recollection of what he said to me about his concern is consistent with my recollection,” Sessions testified. Trump is sinking his own Presidency with his tweeting and comments.
During his testimony, Sessions had the opportunity to correct senators—among them Democrat Mark Warner and Republican Richard Burr—who stated that Trump had asked everyone to clear the room. He did not do so, allowing their characterizations of the meeting to stand as fact.
Again, there’s a reason why all of this is so important: It points to Trump likely understanding that clearing the room to ask this question would have been wrong and possibly criminal. Mueller can now ask every person in that meeting what happened. If the evidence backs Comey’s account and not Trump’s, the obvious question becomes: Why did the president lie? One potential answer: to save his own skin.
Last month, Georgetown Law professor Julie O’Sullivan told me that Trump’s request to clear the room would be one of the strongest pieces of evidence in a hypothetical obstruction of justice case. O’Sullivan, who worked for Comey in the United States Attorney’s Office for the Southern District of New York and then briefly on the special counsel investigation into President Bill Clinton’s Whitewater dealings, said this:
When somebody asks everybody including Comey’s boss to leave the room and then he poses a question—as a prosecutor what I would invite a jury to assume from that is that he knew it was wrong to ask that question. …. In every criminal case that I’ve been involved in, if you have something that indicates a consciousness of guilt or a consciousness that what you’re asking is improper, juries get that.
“The circumstances of the request are really hard to explain away,” she added.
If an obstruction charge were ever to come before a jury, the prosecutor would have to prove “corrupt” intent on the part of Trump. Again, O’Sullivan believes asking everyone to clear the room would be strong evidence of that intent:
It’s like having somebody have a bonfire in the backyard with all the inculpatory documents. Really? Juries might not want to crawl into his head and make inferences, and may be reluctant to convict people for evil intent when it’s not pretty clear, but they understand consciousness of guilt.
In the same Times interview in which Trump denied clearing the room so he could chat with Comey in private, he also said it would have been OK for him to have obstructed justice:
[Comey] said I said “hope”—”I hope you can treat Flynn good” or something like that. I didn’t say anything. But … even if I did, that’s not—other people go a step further. I could have ended that whole thing just by saying—they say it can’t be obstruction because you can say: “It’s ended. It’s over. Period.”
Ultimately, the president’s position is this: He didn’t ask Comey to obstruct the investigation into Flynn and he didn’t clear a full room of witnesses in order to make that request, but he could have done that and even gone so far as killing the investigation entirely if he’d wanted to. At this point, it’s obvious the president believes himself to be above the law. It seems unlikely that Robert Mueller will feel likewise.