In a few short days, Attorney General William Barr will release a redacted version of special counsel Robert Mueller’s Russia investigation report, and a new debate over obstruction of justice almost certainly will be waged.
For most of the past two years, many of my colleagues in the news media have pointed to a single statement in President Trump’s now infamous May 2017 interview with NBC News’s Lester Holt as the best evidence that the president intended to obstruct the Russia probe when he fired then-FBI Director James Comey.
{mosads}“I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won,” the president said in an interview clip that has been played ad nauseam.
That soundbite was revived by TV networks after Barr announced his decision not to pursue obstruction charges two weeks ago.
Even Comey himself — in an interview aired by Holt in late March, after Barr’s announcement — cited the earlier Trump comment in questioning the no-prosecution decision. “What he appears to be saying is, ‘I got rid of this guy to shut down an investigation that threatened me,’” Comey said, qualifying his observation by admitting he didn’t know what was in the president’s head.
In retrospect, Holt’s interviews of Trump and Comey — two years apart — provide a powerful example of how the media can weave one narrative in the court of public opinion that would never fly in a court of law.
To begin, there are some constitutional scholars who question whether a president can ever be charged with obstruction for firing a subordinate employee given the broad powers afforded under Article II. But let’s cast aside that argument for a second to explore the case made by media outlets.
Nearly all of the legal experts I talked with in the past year — Democrat and Republican, prosecutor and defense lawyer, academics and courtroom junkies — offered a very different take on the Holt interview than the media. Most said Trump’s interview in May 2017 may have exonerated the president on obstruction intentions or, at the very least, complicated any contemplated prosecution against him.
How could that be?
Because those lawyers didn’t stop at the one soundbite used to convict Trump in the court of public opinion. They examined the whole transcript, looking for evidence of the one thing Comey admitted he lacked knowledge of: Trump’s state of mind.
{mossecondads}When those lawyers examined the whole transcript, they found that Trump flatly stated that he expected the Russia case not to end with Comey’s firing but rather to continue — perhaps longer — because of the firing.
“Look, let me tell you. As far as I’m concerned, I want that thing to be absolutely done properly,” Trump told Holt of the Russia probe in a soundbite almost never played on cable TV. “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, 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.”
Just as significant, Trump suggested it wasn’t Comey’s actions in the Russia case that bothered him but, rather, his actions in the earlier conduct of the Hillary Clinton email investigation. In fact, Trump stated that Comey’s take on Russia really didn’t matter to him.
“But were — are you angry with Mr. Comey because of his Russia investigation?” Holt asked.
“I just want somebody that’s competent. I am a big fan of the FBI. I love the FBI, the people of the FBI,” Trump answered.
Holt persisted: “But were you a fan of him taking up that investigation?”
“I think that — about the Hillary Clinton investigation?” Trump responded.
“No, about — about the Russian investigation,” Holt clarified.
“No, I don’t care,” Trump replied.
Earlier, before that exchange, Trump suggested that what triggered him to fire Comey occurred a year before the Russia investigation, when Comey created turmoil by choosing to publicly announce his results from the probe of the Clinton email scandal, an act for which he was roundly criticized by the Department of Justice (DOJ) inspector general as violating department policies.
“Look, he’s a showboat. He’s a grandstander,” Trump said of Comey. “The FBI has been in turmoil. You know that, I know that, everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil — less than a year ago. It hasn’t recovered from that.”
Legal experts said those longer exchanges — while not sexy soundbites for TV — created evidence of a very different Trump state of mind than the one the media has portrayed using a single soundbite. And, they added, any decent defense lawyer would have eviscerated prosecutors if they tried to portray the Holt interview as a smoking gun.
It wasn’t.
Trump did a lot of talking during the early days of the Russia probe, and some of it probably was ill-advised. Speaking or tweeting out of frustration, especially when you are the most powerful man in the world — whether to suggest that DOJ go easy on a friend such as resigned national security adviser Mike Flynn, or opining that you feared Comey would screw up the Russia case as he did the Clinton email case — is not a good idea.
Based on my reporting, I wouldn’t be surprised if the redacted Mueller report reveals testimony that Trump told senior staff that he wanted Mueller fired at some point. We know from the president’s tweets he was angry that Mueller had filled his staff with many Democratic prosecutors, some of whom worked for Hillary Clinton or donated to her campaign.
But even if prosecutors had considered obstruction charges against the president, the Holt interview could provide a powerful claim for the defense. Trump clearly told the NBC host he wasn’t trying to end the probe, but rather to ensure it was “to be absolutely done properly.” That statement goes directly to the president’s state of mind and intent.
Defense lawyers could easily make a case that even if the president did ponder firing Mueller, like Comey, it was because he questioned Mueller’s performance and judgment in picking partisans and not because he was trying to end the probe. They’d almost certainly argue that evaluating a subordinate employee’s performance clearly falls under the Article II powers as long as it wasn’t an effort to end or thwart the probe.
Building an obstruction case from the Holt interview, especially in light of the facts that have emerged since, would have been suicidal for prosecutors.
Obstruction cases require several elements.
First: Was there evidence of a crime the suspect was trying to obstruct from an investigation? In this case we now know that Mueller found no evidence of Trump-Russia election collusion. And even Comey, a month after he was fired, testified under oath to Congress that he had not found evidence of collusion.
Second: Did the probe get obstructed or impeded in some way? In this case, Mueller reported that he finished his probe unimpeded and did not have any disagreements with his DOJ managers.
And finally, what was the suspect’s state of mind? In this case, the part of the Lester Holt interview that seldom gets quoted shows Trump declaring that he wasn’t trying to end the Russia investigation and actually expected that he would elongate it.
His real reason — in his own words — was to get rid of an FBI director whose “showboat” performance in the Clinton case a year earlier had disturbed the president. In other words, he wanted someone more competent to run an investigation that Americans would trust and be proud of.
Presumably, Robert Mueller did just that.
So, the next time you hear that Lester Holt interview soundbite, be sure to consider the rest of the transcript. It’s worth reading.
John Solomon is an award-winning investigative journalist whose work over the years has exposed U.S. and FBI intelligence failures before the Sept. 11 attacks, federal scientists’ misuse of foster children and veterans in drug experiments, and numerous cases of political corruption. He serves as an investigative columnist and executive vice president for video at The Hill.