The Washington Post is reporting that Special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election has now expanded to look into whether President Donald Trump attempted to obstruct justice. What is most notable is not the investigation of obstruction of justice. Rather it is the fact of the leak that is alarming. Former FBI Director James Comey (who followed Mueller at the Bureau and has had a long relationship with Mueller) just admitted to leaking damaging information against Trump. Comey, who was tasked with investigating leakers, became a leaker himself. Now, the Special Counsel’s office is accused by Trump’s counsel of leaking informing damaging to Trump — an office that could be asked to consider unauthorized leaks as part of its investigation. While such leaks could come from witnesses, those witnesses appear in large part high-ranking members of the Trump administration unless they came from a briefing with members of Congress.
The leak became a torrent with the disclosure that Daniel Coats, the current director of national intelligence, Adm. Mike Rogers, the head of the National Security Agency and Richard Ledgett, Rogers’ departed deputy, all agreed to participate in interviews with Mueller’s investigators as part of the investigation.
My concern with the leak is that it seems so strategically placed. Just days after a story that Trump was considering the termination of Mueller, the Washington Post is reporting a leak that Mueller is now investigating Trump. That would make it even more difficult to fire Mueller (which would be a truly moronic move at this point anyway). Leaks are also problematic because of Mueller’s controversial history with Comey. When he was appointed, I noted that he would not be viewed as neutral by the Trump team. He shares a long history and friendship with Comey. For that reason, he was a curious choice — a choice made even more controversial with the rising importance of Comey to the investigation.
As noted earlier, the appointment of a Special Counsel and the investigation in obstruction of justice was made virtually inevitable with the firing of James Comey. However, given the allegations of leaks as part of this scandal, it would be alarming if the Special Counsel or his staff are engaging in their own self-serving leaks.
The news of the expansion of the investigation should push the White House toward more strategic thinking rather than simple tactical moves. The White House enraged many after the Senate hearing by having cabinet level officials — three — refuse to answer questions without a formal invocation of executive privilege. Mueller is now likely to get the answers to these questions. As I mentioned in a recent column, Attorney General Sessions should have stated an intention to confirm whether he has permission to discuss presidential communications or has a formal invocation of privilege. Absent an answer or an invocation, he risks a finding of contempt. Moreover, these three appearances reinforced the image that the Trump White House has something to hide. Sessions should have had a formal invocation in hand given the two prior witnesses and their refusal to answer questions.
It is often better to be your own messenger at times like this. If these communications are going to be revealed, the White House should be the vehicle for the disclosure. While the information might be negative, the waiving of privilege vis-a-vis Congress would undermine claims of obstruction. If reports are true that Coats told staff that Trump had tried to get him to intervene with Comey, it would reinforce Comey’s own recollection of his meeting with Trump.
The leak was clearly designed to put Trump and the public on notice — making any moves by Trump against the investigation more problematic and potentially incriminating. Trump cannot afford to add evidence of the use of his office to obstruct or harass the various investigation. If Mueller decides that the statements made in the Trump meetings could constitute evidence in a criminal investigation, he would likely prevail in getting the information. The issue therefore is whether Trump wants to be forced into disclosing this information or doing so voluntarily.
What do you think?