President Trump’s reaction so far to Friday’s guilty plea by his former National Security Adviser, Michael Flynn, suggests that he is getting nervous about what is going to come of Mr Flynn’s cooperation deal with the investigation into the Trump campaign’s links to Russia. You could even say he was panicking as he realises the investigation isn’t going away and is now inside the White House with the conviction of Mr Flynn. Reports today are also suggesting that the Democrats in the Senate are investigating the possibility of charges against the President himself for obstruction of justice, claiming that he attempted to impede the FBI investigation – most notably when he asked the former head of the investigation James Comey to stop investigating Michael Flynn. This is said to have happened just days after the President fired Mr Flynn for lying to the Vice President Mike Pence. The President later fired Mr Comey. Mr Comey’s firing directly led to Congress appointing Robert Mueller to lead a Special Investigation and it is this investigation, along with three investigations taking place in Congress, that are now closing in on the President, his family and his closest aides.
Democrat Senator Dianne Feinstein (above), the ranking member of the Senate Intelligence Committee today said that they are looking into Mr Trump, saying they are “putting together of a case of obstruction of justice” against him. Speaking to NBC’s Meet The Press, she added: “I think we see this in the indictments, the four indictments and pleas that have just taken place and some of the comments that are being made.” She is referring to the cases of Michael Flynn, George Popadopolous, Rick Gates and Paul Manafort. The former two have both pleaded guilty to lying to the FBI and the latter two have been indicted for committing fraud against the United States. All four men have links to the Trump campaign and/or administration.
President Trump has taken to Twitter since Michael Flynn’s appearance in court on Friday to reinforce and reiterate his denials of collusion with Russia and to again deny that he attempted to get James Comey to pull back from investigating Michael Flynn. The White House has also repeatedly called for the Mueller investigation to be drawn to a close after the guilty plea by Mr Flynn. However, the investigation continues unabated and, indeed, is intensifying with the impetus that has been injected into it with Mr Flynn’s agreement to cooperate in return for just being charged on one relatively minor offence and with a promise that his son won’t be drawn into the affair.
Mr Flynn is now tied to his deal with the FBI and should he fail to cooperate he could once again find himself being investigated and charged with far more serious offences. His success in getting a deal, although originally he wanted immunity from prosecution, suggests that he has something very important to offer the investigations. Numerous reports suggest he has or will implicate the President’s son-in-law Jared Kushner as being directly involved in the illegal contacts with Russian officials. It is alleged that members of the Trump campaign team attempted to influence Russian government officials to effect United States foreign policy in direct contravention of the Logan Act. This Act states that no US civilian can undertake foreign policy without the consent of the standing government, which at that time was the administration of President Obama. These contacts were alleged to have taken place during the transition period after the election of Donald Trump but before he became President.
Although in law this is illegal, it is something that has never been tested. This in itself reflects how much Donald Trump has converged from traditional and established norms and expectations of previous Presidents. The fact that this is a vague area of law, so far we are seeing the investigation concentrating on bringing other charges, such as fraud and lying or making false statements to the FBI. As in the case of Mr Flynn, bringing lesser charges are also a means to gain cooperation which can then be used to build a stronger case against more senior figures. As for the Congress, a charge of obstruction of justice against the President would be grounds for impeachment, which grows more likely but for now still seems unlikely as Republicans control Congress. However, the mid-term elections come in 2018 and the Democrats will be hoping to gain control of Congress at which point impeachment could become much more likely.
The threat of charges against President Trump or his family are unlikely to ever see any of them going to jail. President Trump will almost certainly pardon any member of his family before that happens, which is his right to do without recourse to Congress or anyone else. He has also suggested that he could pardon himself, though this is more doubtful and the legality of this has yet to be challenged. Therefore, the only way to secure justice if President Trump is guilty of obstruction of justice or anything else is to impeach him and remove him from office. If he was removed from office, Vice President Mike Pence would replace him. However, Mr Pence led the Trump election campaign and could yet be implicated in the FBI or Congressional investigations. This would certainly complicate the matter.
In light of the new focus on Mr Trump, the President has been fighting back and trying to reframe the debate over his alleged collusion with Russia. On Twitter he reiterated that he did not try to influence James Comey and attacked the credibility of the FBI, and of course had to bring in Hillary Clinton into his rant: “After years of [former FBI Director James] Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters – worst in History! But fear not, we will bring it back to greatness.”
Mr Trump has been boosted by the removal from his team by Robert Mueller of one of his investigators who had posted online anti-Trump comments. The investigator also worked on the investigation in Hillary Clinton’s email server allegations – something for which she was never charged with any offence. The President also focused on reports of an ABC journalist, Brian Ross, who was suspended for inaccurate reporting. He had reported that candidate Trump had ordered Mr Flynn to contact Russian officials, which would have been illegal under the Logan Act, but corrected himself later pointing out that in fact Trump had won the election and also it appears that it was a high-ranking official who gave the order, not Mr Trump. The President tweeted four tweets on the issue:
“Tainted (no, very dishonest?) FBI “agent’s role in Clinton probe under review.” Led Clinton Email probe. @foxandfriends Clinton money going to wife of another FBI agent in charge.”
“After years of Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters – worst in History! But fear not, we will bring it back to greatness.”
“People who lost money when the Stock Market went down 350 points based on the False and Dishonest reporting of Brian Ross of @ABC News (he has been suspended), should consider hiring a lawyer and suing ABC for the damages this bad reporting has caused – many millions of dollars!”
“Report: “ANTI-TRUMP FBI AGENT LED CLINTON EMAIL PROBE” Now it all starts to make sense!”
On Saturday, the President tweeted in response to Michael Flynn’s guilty plea that he fired him in February “because he lied to the vice-president and the FBI.” We knew that he had fired him because of lies to the Vice President, but this is the first time he has included the FBI in his reasoning. This may simply be referring to the fact that Mr Flynn had pleaded guilty the day before the tweet, but some are suggesting it is evidence that he was aware of lies to the FBI, therefore he must have been aware of contacts with the Russians. This would be strong evidence of obstruction of justice as it was just days later that he tried to influence James Comey to back-off investigating Michael Flynn, again suggesting that Mr Flynn had damaging information and this shows that the President knew of contacts with Russians.
Richard Painter, a former ethics counsel in the George W Bush administration, said: “He could be tweeting himself into an obstruction of justice conviction,” while Laurence Tribe, a professor in constitutional law at Harvard University, said: “That’s a confession of deliberate, corrupt obstruction of justice.” One of Trump’s attorneys, John Dowd, suggested that it was just “sloppy” writing by the President.
It has also emerged, via a leaked White House manuscript, that the President contradicted his reasoning for firing Mr Comey. The manuscript claims that the President fired Mr Comey because of his Russia investigation, with the President saying – according to the manuscript – “I face great pressure because of Russia. Now, that’s taken off.”
James Comey has always maintained that the President asked him to back-off investigating Michael Flynn in a private Oval Office meeting. Mr Comey was so taken aback that he said immediately took notes of the meeting once it was over and of course refused to cave in to the pressure from the President. He shared his notes with senior FBI officials. Mr Trump continues to deny trying to impeded Mr Comey’s investigation, tweeting this weekend: “I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!”
Sources & Further Reading:
- Senate considering obstruction of justice charges against Donald Trump, senior Democrat says – The Independent – Sunday 3 December 2017 – by Clark Mindock, in New York
- Donald Trump lashes out in series of tweets as pressure mounts over FBI probe – The Independent – Sunday 3 December 2017 – by Charles Mindock in New York
- Expletive-filled rants and enormous McDonald’s orders: Inside the surreal world of Donald Trump’s campaign – The Independent – Sunday 3 December 2017 – by Michael Kranish
- Trump’s Flynn tweets point to obstruction of justice, say opponents – The Guardian – Sunday 3 December 2017 – by Jon Swaine
- Russia-Trump: President hits out at FBI over Russia inquiry – BBC – Sunday 3 December 2017
- Could Trump be guilty of obstruction of justice? – BBC – 17 May 2017 – by Joel Gunter, in Washington
- Is Trump closer to obstruction of justice? – BBC – 9 June 2017 – by Joel Gunter, in Washington