Below 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.