White House Claims “Many Legal Scholars” See No Conflict In President Asking Comey If He Is Under Investigation

White House principal deputy press secretary Sarah Huckabee Sanders assured the media yesterday that there was nothing inappropriate with President Donald Trump asking former FBI Director James Comey if he was a target of the ongoing investigation over Russian influence or collusion in the presidential election.  She insisted that the White House had reached out to legal experts and “several legal scholars who have weighed in on it and said there’s nothing wrong with it.”  She also said that “many legal scholars and others that have been commenting on it for the last hour.”  While I cannot speak for all legal scholars, I find it surprising that the White House could find “several” who would sign off on such an inquiry.  It was clearly improper for Trump to ask the question and it would have been equally improper for Comey to answer in this fashion.

To make matters worse, Sanders said that, by removing Comey, the White House hoped to bring the investigation to a sooner conclusion. In her defense, I took her comment as meaning that the White House has nothing to fear from the investigation and wants it to come to a conclusion: “We want this to come to its conclusion, we want it to come to its conclusion with integrity. And we think that we’ve actually, by removing Director Comey, taken steps to make that happen.” However, it was another uniquely ham-handed treatment of the controversy from a White House that continues to struggle with maintaining a single coherent message.  The overwhelming thrust of the coverage of the Comey termination was that it was meant to bring an end to the Russian investigation.  To connect the firing of Comey with the hope for a faster conclusion to the investigation is incredibly daft.

The issue came up after an interview of Trump with “NBC Nightly News” on Thursday.  Trump said he asked ousted Director James Comey three times once over dinner and twice on the phone to confirm that he was not a target or under investigation by the FBI.  To make matters worse, Trump said that Comey asked for a private dinner in an effort to keep his job.  (Trump later said that he “thought” the dinner was Comey’s idea).   Trump portrayed Comey as campaigning to keep his job at the very dinner that the President decided to ask him for an assurance that he was not a target of the investigation. Trump told Lester Holt:

“He wanted to have dinner because he wanted to stay on…he wanted to stay on as the FBI head. And I said I’ll, you know, consider and we’ll see what happens. And at that time he told me you are not under investigation.”

If Comey did give these assurances, he is not the professional that I have long taken him for.  There is no way to know where this investigation will go.  I have publicly criticized over-wrought coverage suggesting that Comey was fired because the investigation was “getting too close” to Trump.  Indeed, I have repeatedly asked for precisely the crime that is being investigated other than reporting/registration violations by people like Flynn (which are rarely prosecuted).  However, the FBI is still investigating claims of collusion and influence peddling.  There have also allegations tied to Russian financial interests connected to Trump and his companies.

Now back to those “several legal experts.”  There is nothing criminal in such an inquiry, though that should not be the test of appropriate presidential conduct.  There is ample ethical problems with a president making such an inquiry. There are a host of rules and protocols insulating the FBI from White House interference and inquiries.  That is the case for general communications. It is even more important when the president himself is at risk.  After all, there have been demands for a special counsel for months.  When you add that Trump knew Comey was actively trying to convince him to retain him as Director, the conflict becomes obvious and overwhelming.

The Justice Department has long limited direct conversations between a president and the FBI on matters involving the president.  Under a 2009 directive, only the Attorney General or Deputy Attorney General communicated with the White House directly and not the FBI Director absent special circumstances.  While this is not an iron clad rule, it reflects the focus on protecting the FBI from allegations of political influence. It did not help matters for Trump to say that he fired Comey to guarantee that the investigation is “done properly.” A President does not dictate the proper way of investigating people around him. Moreover, no one has suggested that Comey had done anything to hinder or harm the Russian investigation.

The irony is that the White House claimed that Comey was fired because of his press conference on the decision not to prosecute Hillary Clinton.  Many agreed that Comey violated long-standing rules in discussing the evidence against Clinton.  The point is that a director should not give inside information or progress reports on investigations.  Yet, that is precisely what was asked from Comey when the President wanted confirmation that he was not a target of the FBI investigation.

There was an obvious conflict of interest in the conversation described by President Trump.  It is not clear if Comey will confirm that he gave these assurances to the President.  Ironically, if he did, we would no longer have to debate whether Comey warranted termination.