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Report: NSA Deputy Wrote Memo Detailing Trump’s Effort To Get Agency To Exonerate His Campaign In Russia Investigation

Admiral_Michael_S._Rogers,_USNdonald_trump_president-elect_portrait_croppedAnother 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.

 

33 thoughts on “Report: NSA Deputy Wrote Memo Detailing Trump’s Effort To Get Agency To Exonerate His Campaign In Russia Investigation”

    1. George,
      I would amend that to the following: Trump is being investigated for having the audacity to become President.

    2. George, I think this is the best summary for the thousands of pages already written.

      The left has gone nuts and the right can’t stand an interloper.

  3. and turley just discredited himself. the article title suggests trump was trying to shut the investigation down. read in the article that trump only wanted them to publicly state what was privately known.

  4. “He was told that he was not under investigation in the investigation, a point Comey confirmed…Trump wanted that fact made public because his pponents were suggesting a grand conspiracy with the Russians.” OMG, TRUMP TOLD HIS UNDERLINGS TO TELL THE TRUTH! OMG!

  6. I continue to believe this offensive by the deep state, Obama operatives, and the complicit MSM is to keep Trump on his heels. Because when he stops having to play defense, he can go on offense, and start investigating REAL crimes during Obama, who used the intelligence and IRS communities for political purposes.

    1. Don’t forget the GOP establishment that is also opposing Trump. The way things are going, I keep forgetting exactly who controls the Senate and the House right now.

    2. Abuse of the power of government against the People.

      Not an insignificant crime under the U.S. Constitution.

  7. Those of us who voted for Trump obstructed justice. Those of us who voted for Hillary obstructed Bill. Now Bill and Monica can sit in a tree.

  8. The Trump presidency has already accomplished more than I could have hoped for:
    No Hillary Clinton
    Neil Gorsuch
    Exposing the deep state

    The longer these investigations drag out the more they prove the point of how corrupted the government bureaucracy has become. This is awesome!

  9. Solution…..kick ass big time in the midterm and 2020.

    Let the man lead.

    3 1/2 years to have a 6 – 3 or 7 – 2 court.

    Pence 2024

    Pence 2032

    Will Reed, Pelosi, Schumer, Warren, Sanders and Clinton(s) even be around in 15 years?

  10. Same old bull, from the same old bulls*^#ers. Let the man alone to do his job.

    1. Trump is still managing to make war in the mideast.. Shot down a plane in Syria yesterday. He should nominate some people for cabinet positions like Secretary of the Navy rather than just sitting around tweet tweet tweet tweeting all day while watching cable news.

  11. What is the point other than to do political damage to Trump? Even if he did find some ‘crime’ can Trump be indicted by Mueller? No. Will Trump be impeached? No. Has Comey testified under oath that there was no obstruction? Yes. Has Coats testified under oath there was no obstruction? Yes. Has Rogers testified under oath there was no obstruction? Yes.

    Bottom line? We have Trump for four years. So let’s put an end to this charade.

  12. Even the Democrats are saying there was no collusion, so I am having a hard time seeing how the
    Special Counsel justifies his position unless he expands the playing field.

    1. Money laundering and other criminal financial indiscretions appear to be much of the focus if one looks at the back rounds of those Mueller has hired.

      1. frankly – as I said, he has to spread his focus to keep his job.

        1. And Mueller is hedging because he knows he needs to recuse himself if he opens an investigation into ‘obstruction.’ And he knows that Comey, Coats and Rogers have all testified under oath that there was no obstruction. So what will Mueller actually investigate so that he can keep his job – that Comey, Coats and Rogers were lying under oath?

          1. Heard that Loretta Lynch may be under investigation now. Would that be under Mueller’s charge?

  13. All this to deflect the Largest Pedophile
    Ring in the the History of the United States. #PedoGate #HisNameWasSethRich
    “First comes Europe than comes Britain than comes Satan in a baby carriage.”

  15. Until you become clairvoyant, Prof Turley and know what Trump knows, and until you know what is in the all the memos memorializing relevant conversations between Trump and his subordinates, leaked or not, musings like this are mostly blather.

    You have already made your point about the relevant provisions in Title 18, multiple times. Yes, many of those commenting “ignore” potential defenses to obstruction of justice charges. Given the manner in which Trump has acted (like someone who is trying to hide something), I’m not surprised. The whole situation stinks like butyric acid. That matters for purposes of deciding whether to investigate, but we should see all of the relevant evidence before passing judgment on whether Trump committed a crime.

    The fact is that There is a significant amount of evidence that is not in the public realm. Without knowing that evidence, we can all blissfully blather on. All of our blather matters not. What matters is the evidence once the investigation is completed.

  16. Another example of ‘a memo reportedly seen by a reporter but not produced’ and there fore is the same as the ‘anonymous sources’ or ‘officials’ with no names nor tired to any particular agency. Really? No evidence no crime. and we all know how much we can trust the left stream medium.

    1. Add to that the Professors analysis….and then that idiotic remark of Chris Matthews who stated basically ok there is no evidence it happened but can you prove it didn’t happen?’ Maybe the left should stop beating their wives and children.

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