No, Giuliani Did Not Implicate Trump In Obstruction of Justice In Comey Comments

225px-rudy_giulianiBelow is my column in the Hill newspaper on the widespread criticism of former New York mayor Rudolph Giuliani’s interviews as implication his client, President Donald Trump, in the crime of obstruction of justice.  Giuliani noted that Trump fired James Comey in part due to his refusal to state publicly that Trump was not a target. While I have been highly critical of Giuliani’s performance, the defense raised by Giuliani was neither new nor a basis for a criminal charge.

 

Attorney Rudolph Giuliani’s Fox New interview Wednesday night on President Trump’s new position on the payment of hush money to porn star Stormy Daniels has set off a public fervor. Much of the criticism is well-based. Giuliani’s portrayal of the FBI agents who raided the office of Trump’s personal attorney, Michael Cohen, as “stormtroopers” was outrageous, particularly since he once headed the office directing the search. His new explanation for the president on the Stormy Daniels scandal was conflicted and convoluted.

Much of the coverage was also directed at Giuliani’s explanation for Trump firing former FBI director James Comey. Giuliani said Trump was upset that Comey would not state publicly that Trump was not a target of the Russian election interference investigation. The media pounced on the statements as conflicting with Trump’s past position and even as being proof of obstruction.

It is not. Indeed, it may be the only aspect of Giuliani’s interview that was beneficial to Trump. In his interview by Fox’s Sean Hannity, Giuliani said Trump “fired Comey because Comey would not, among other things, say that he wasn’t a target of the investigation. He’s entitled to that. Hillary Clinton got that, and he couldn’t get that. So he fired him, and he said, ‘I’m free of this guy.’”

The response was immediate and ecstatic. University of Michigan Professor Barbara McQuade, a former prosecutor, said that Giuliani “may just be building the case against [Trump]. Even demanding that Comey make a public statement that Trump is not under investigation would itself potentially be obstruction of justice.” Likewise, New York Magazine observed “many pundits were quick to note that firing Comey because he wouldn’t say what Trump wanted about the Russia investigation, sounds like the very definition of obstruction of justice.”

If so, it is a definition not found in the criminal code. For over a year, I have written about the considerable obstacles facing a charge of obstruction against Trump and questioned why the media was ignoring this very obvious defense. Trump had grounds for terminating Comey independent from any effort to shutdown the investigation. Deputy Attorney General Rod Rosenstein called for Comey to be fired for “serious mistakes” and cited a long list of former attorneys general, judges and leading prosecutors who believed Comey “violated his obligation to ‘preserve, protect and defend’ the traditions of the [Justice] Department and the FBI.” These professionals viewed that Comey “violated long-standing Justice Department policies and tradition.”

Rosenstein added that, despite the wide range of opinions condemning his actions, Comey “refused to admit his errors.” More importantly, Trump himself referred repeatedly to Comey’s refusal to publicly state what he was privately telling Congress, which is that Trump was not a target. Trump was consistent in his conversations with Comey and other officials. He could not understand why Comey would tell Congress that he was not a target yet not inform the public. He was particularly sensitive over the refusal since Comey had publicly cleared Clinton.

Experts like McQuade insist that demanding a public statement is “interfering in the investigation” and, thus, obstruction. There is no case supporting such a criminal charge to my knowledge. Moreover, Comey was revealing this information to Congress and others. Trump viewed Comey as biased, as evidenced by his failure to state publicly what he was telling Trump and others in private. Finally, and most importantly, he was not asking Comey to lie in making such information public but only to state what he already told people outside of the FBI.

Of course, Trump was also consistently wrong in raising this issue with Comey and other high-ranking officials. His statement to NBC Nightly News anchor Lester Holt that he was thinking of the FBI investigation when he fired Comey, and would have done so without the recommendation of Rosenstein, is damaging. His alleged statement to the Russians the next day that firing Comey “took pressure off” him was equally damaging. He has largely built a case against himself with these ill-considered and improper inquiries.

However, Comey admitted that Trump agreed with him that the Russian investigation should be allowed to reach its own conclusion and, putting his rhetoric aside, the president has not taken any actions to scuttle the investigation. Various accounts suggest that Trump could not understand why he had to put up with coverage about being a target of the investigation when Comey and others knew that he was not.

In his congressional testimony, Comey said that “on March the 30th, and I think again on, I think on April 11th as well, I told him we’re not investigating him personally. That was true.” Comey recounted Trump’s repeated requests for a public statement to that effect. Trump also reportedly urged Daniel Coats, the director of national intelligence, and Michael Rogers, the director of the National Security Agency, to publicly state that there was no evidence of collusion during the 2016 election. Trump’s motivation, along with his ham-handed means, could easily be viewed as having a political rather than obstructive purpose. Past presidents have pressured subordinates to make public some information to the advantage of themselves or their administrations.

For more than a year, I have repeatedly asked why commentators have ignored this obvious defense based on Trump’s own words, as recounted by his own critics. If Trump fired Comey because he viewed him as biased in refusing to publicly state his current status, it would not be obstructive to the investigation itself. This defense not only fits with Trump’s own comments, it fits with his character. Trump is obsessed with his public persona and the notion that he did not win the election fair and square. While some may view that as criminally egotistical, it is not in fact technically criminal.

Trump also is accused of seeking to pressure Comey to drop the investigation of Michael Flynn, but that also could be defended on the simple grounds of empathy for a loyal friend. The problem with the coverage is that the media fails to recognize that criminal allegations often rest on one possible narrative to the exclusion of equally, if not stronger, narratives. That is not how a credible criminal case is built. If there is a viable defense, based on not just Trump but witnesses, it should generate more than reasonable doubt over the criminal allegation.

None of this means that Trump is not facing serious threats or that Giuliani did not make things worse with his attacks on the prosecutors, FBI agents and others. Moreover, this defense can still be challenged by other evidence. However, Giuliani was not the first to raise this defense. Trump was. This is just the first time that some in the media acknowledged it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

165 thoughts on “No, Giuliani Did Not Implicate Trump In Obstruction of Justice In Comey Comments”

  1. No one should dictate American foreign policy. Today and yesterday Iran has supported Hamas and Hezbollah and has been placing military installations in Syria along with being responsible for terrorism elsewhere including Yemen and Iraq. Saudi Arabia IMO has never been our friend but today is an ally in balancing the power in the Middle East. Whether Mohammed Salam will push Saudi Arabia away from Wahhabism is unknown to me but for the moment seems to be moving in the right direction. Saudi Arabia has always provided money while Iran has supplied missiles to terrorist groups and is threatening to annihilate countries including the US. I think you are wrong about which country is number one on the terrorism list but I’m happy if you rank both countries as terrorist nations.

    Iran under its present leadership, without question, is our enemy today.

  2. As far as the “stormtroopers” comment being “outrageous, particularly since he once headed the office directing the search” — I thought he somewhat justified that descriptor by noting that when he was in charge, those sorts of dramatic tactics were reserved for, e.g., dangerous mafiosos. It was their use against mere doofuses like Cohen and Manafort that merited the “outrageous” tone.

  3. STILL-DEVELOPING STORY:

    TRUMP USED SO-CALLED “DIRTY OPS” TO DISCREDIT IRAN DEAL

    This story is still developing. So we need to carefully distinguish what we can say for sure with what is still unverified. Multiple news organizations are surely pursuing the story, which means we’ll be learning more in the coming days.

    On Saturday, Mark Townsend and Julian Borger of the Observer broke this news:

    Aides to Donald Trump, the US president, hired an Israeli private intelligence agency to orchestrate a “dirty ops” campaign against key individuals from the Obama administration who helped negotiate the Iran nuclear deal, the Observer can reveal.

    People in the Trump camp contacted private investigators in May last year to “get dirt” on Ben Rhodes, who had been one of Barack Obama’s top national security advisers, and Colin Kahl, deputy assistant to Obama, as part of an elaborate attempt to discredit the deal.

    The Observer article refers to “aides to Donald Trump” but does not elaborate. That could mean administration officials, or it could mean people outside the administration, in his campaign organization or associated with him in some other way. In any case, on Sunday, Ronan Farrow of the New Yorker published an article providing more detail. He began by reporting that Ann Norris, a former State Department official and Rhodes’ wife, was approached by a woman claiming to work for a British film company who wanted Norris to consult on a documentary about geopolitical crises. Kahl’s wife was also approached, by a woman claiming to work for “Reuben Capital Partners,” who wanted to talk with her about her daughter’s school. Both women found it suspicious, and declined the meetings.

    According to documents Farrow saw, this was part of an effort by Black Cube, the intelligence firm that film producer Harvey Weinstein employed to use covert tactics to dig up dirt on the women accusing him of sexual assault and harassment. And as foreign policy reporter Laura Rozen pointed out, when Black Cube approached actress Rose McGowan in an attempt to acquire information on her that could be used against her in Weinstein’s defense, the agent doing the approach claimed to be from “Reuben Capital Partners.” Farrow goes on:

    The documents show that Black Cube compiled detailed background profiles of several individuals, including Rhodes and Kahl, that featured their addresses, information on their family members, and even the makes of their cars. Black Cube agents were instructed to try to find damaging information about them, including unsubstantiated claims that Rhodes and Kahl had worked closely with Iran lobbyists and were personally enriched through their policy work on Iran (they denied those claims); rumors that Rhodes was one of the Obama staffers responsible for “unmasking” Trump transition officials who were named in intelligence documents (Rhodes denied the claim); and an allegation that one of the individuals targeted by the campaign had an affair.

    Edited from: “How Far Did Trump Allies Go To Discredit Supporters Of Iran Deal?”

    Today’s Washington Post based on story from Sunday’s London Observer

    1. Notice how Trump is illustrated here? He looks 30 years younger and 50 pounds lighter.

      1. Yes, the depictions of Mueller and Trump in the cartoon reflect their respective inner personas. The image shown of Trump reflects his inner, youthful energy and vitality and enthusiasm. The image of Mueller reflects his mendacity, deceptiveness, malevolence, and corruption.

  4. President Trump is being “framed” by a rogue special-cum-general counsel who has left the reservation and is compelling “witnesses” to not only “sing” but “compose” through the exertion of “unfettered power” as a political, not legal, endeavor to remove a duly elected President.

    Private citizen John Kerry conducts “shadow diplomacy” implementing Obama’s foreign policy.

    The Obama Coup D’etat.

      1. Chucky,
        Your tin foil has, up to the present, shielded you from the details.
        Ergo, since said details are to eventually oxidize & burn through that thin layer, I urge you to reserve your “extra” for your own purposes.

        When the “burn thru” event occurs your tender soft head will be unduly exposed to the radiation.
        The effect is somewhat like being subjected to confinement in a microwave chamber on “full blast”.
        In such circumstances, the Libtoid soft-heads will, in unison, explode.

        It will be a bloody mess.
        We will hire the lucky Libtoids who preserved their tin-foil to clean it all up. As it should be.
        Have a nice day.

    1. Haha. Use your super-secret decoder ring. The conspiracy is bugging your shoes.

      this is to “tinfoil is a valuable national resource, you know” georgie

    1. Yes, editorial cartoons are “the best,” but only when backed by some measure of integrity. In the case of your example, however, The Washington Post and integrity are anomalous.

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