Another day, another leak. The Wall Street Journal is reporting that it has seen a memo written by Rick Ledgett, the former deputy director of the NSA, detailing a phone call in which U.S. President Donald Trump NSA Director Admiral Mike Rogers to state publicly that there is no evidence of collusion between his campaign and Russia. It is the latest high-level official reporting a concerted effort by Trump to dispel allegations of collusion. While the Special Counsel is reportedly seeking to interview Ledgett, I still remain skeptical of the current facts being used as the basis for an obstruction case. As I previously discussed, Robert Mueller has hired at least one senior lawyer known for his unsuccessful effort to expand the scope of obstruction. However, this memo does not necessarily change the narrative on both sides of the controversy. There remains an obvious defense to a conventional obstruction claim – assuming the definition of the crime is not stretched beyond recognition to change the meaning of “corruptly influence.”
The memo reportedly memorialized how Trump questioned the findings of American intelligence community that Russia interfered in the 2016 election. The memo relates how Trump pressured Rogers, though Rogers said testified that he never felt that he was directed to do anything “illegal” or “immoral.”
I often view such things though the lens of a criminal defense attorney and this is what I see:
First, Trump has been publicly denouncing the Russian investigation as unfounded and appears to have expressed the same sentiments in such meetings. He was told that he was not under investigation in the investigation, a point Comey confirmed.
Second, the question of the incriminating aspect of this memo depends greatly on the tone and language used. Trump could easily maintain that he was repeatedly told that there was no evidence of collusion and Comey had told Congress that there was no such evidence. He wanted that fact made public because his opponents were suggesting a grand conspiracy with the Russians. With the allegation dragging down his Administration in its infancy, Trump made no secret of his desire to get this information out. If Comey did tell Congress that there was no evidence, Trump’s desire to have officials state that information publicly could not be construed in my view as trying to corruptly influence an investigation or pending proceeding. As head of the executive branch, Trump can say that he viewed this as a matter of getting information out, not influencing conclusions or investigations.
Third, there is two types of actions that Trump could possible ask for from Rogers. Either Trump was asking for him to publicly state what information the NSA had to dispel these allegations or he could have asked Rogers to somehow intervene to try to scuttle the investigation by the FBI. The former “ask” would be less suspicious than the latter “ask.” Trump can argue that he had gone to the various agencies with a role in the controversy or information to seek a more public account of what is known and, more importantly, what is not known.
Obviously, these are defense oriented perspectives but a prosecution case must consider whether there are obvious explanations other than criminal intent before seeking a criminal charge.
At the end of the day, any prosecution must be able to overcome the statutory language. I have already discussed how 18 U.S.C. 1505 focuses on a “pending proceeding” and how courts generally do not include an FBI investigation within that meaning. As to 18 U.S.C. 1510 covers FBI investigations but corrupt influence has been largely confined to acts like bribery.
18 U.S.C. § 1512(c)(2) does contain the previously discussed catch-all provision for anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” There is a grand jury investigation of Michael Flynn reportedly issuing subpoenas. However, it is unclear when this grand jury began since it was reportedly around May 10th. Trump’s comments about Foley occurred in February. It is also not clear if Trump was aware of the grand jury even if it is focusing on the Russian matter.
In other words, there remain missing elements and serious question of both Trump’s knowledge and, more importantly, intent. Once again, I have never seen a charge on these type of statements. That does not mean that the Special Counsel investigation is invalid. As I stated at the time of Comey’s firing, there is a legitimate basis to investigate obstruction but much of the commentary has ignored the elements and obvious defenses.