When Questions of Norms Become Questions of Law: Trump's Conversations with Comey

For a reason still unknown, the President’s letter dismissing the FBI Director included the statement that James Comey had told him three times that he was not under investigation. The letter alone raises questions: on what conceivable grounds would such a conversation have been held between a president and the FBI official in charge of a pending criminal investigation? Behind that inquiry lies others: details about the conversations, including Comey’s recollection of them, and what the President may have relayed to others within the White House about what he was told.

But looming over all these issues of fact are those of law involving the potential consequences of these actions—including the potential effect on the president's interest in maintaining the confidentiality of these communications under a claim of executive privilege. More seriously, there is also the question of whether the president has now made himself the potential subject of an investigation into obstruction of justice.

Following his letter dismissing Mr. Comey, the President proceeded to discuss in more detail the purported conversations with the FBI director, in an interview with NBC News. He confirmed that these discussions with Mr. Comey about his legal status did take place, one in person and two by phone. He also stated that he had initiated at least one of these exchanges. It is fair to say that with these disclosures, the President may have set into motion legal complications, or worse, for himself and his Administration.

It might be best to begin with the question of norms and work up to matters of law. It is well-nigh incomprehensible that the President would call the Federal Bureau of Investigation to inquire about any pending criminal investigation. The norm is the generally and well-understood one: that the President, while responsible for the leadership of the Department and certainly able to dictate legal policy, including criminal justice policy, should refrain from any attempt to influence criminal enforcement decisions. The operative distinction is between setting the substance and priorities for criminal law enforcement and deciding on particular prosecutions. A president is certainly free to determine the former, and indeed that's what the chief executive is elected to do. But the president should never attempt to influence the latter, for the simple and obvious reason that we would not want the most senior political figure in government deciding upon whom to visit the cost and potential ruin of criminal prosecution.

In this case, President Trump took a step further and inquired about the possibility that he, in his personal capacity, was subject to investigation. If the norm as applied more generally holds at all in criminal cases, it applies with special force in a case where the President would intervene in the criminal justice process in his own self-interest or the interests of political supporters, friends, family members or allies.

Why would the President have included this admission in his letter? Presumably he or some of his advisers imagined that, having been assured that he was not the subject or target of a criminal investigation, and having made public that assurance, the President could freely fire Mr. Comey without facing the charge that he was acting to defend himself.

If this was the calculation, it was badly made. Having already pressed Mr. Comey for assurances that he was not under investigation, but having known that some investigation into the Russian matter was being pursued and would touch upon at least his campaign and other personal or professional associates, Mr. Trump accomplished the opposite of what he may have intended. Whether or not the President was told or concluded that he was not personally exposed to liability, the investigation very directly affects his personal and political interests. He can hardly deny that he was aware of the threat to those interests. The President has repeatedly tweeted out his frustrations over the ongoing interest in the Russia-Trump campaign connection and recently described it as a charade on which no further tax dollars should be spent.

What, then, are the potential legal consequences, at least based on what is known to date? Here it is useful to take care to note that we know only so much. For example, we know about the Trump-Comey conversations but not about their content. We don’t know the precise questions asked or the exact answers given—or whether anything in the President's question suggested frustration with the probe and a strong hint, or something bordering on a direction, that the Director think twice about pursuing it aggressively or further.

It does seem clear, however, that the President has opened himself up to a line of inquiry into whether in this call, perhaps in conjunction with other actions, represents attempted obstruction of justice. After all, it appears that the subject came up not once, but as many as three times, and that on at least one of those occasions the President directly initiated the question. Do these multiple requests or demands for reassurance, by their very repetitiveness, imply that the President was bringing pressure on the person in charge of a criminal investigation to limit it—at least insofar as Mr. Trump was concerned, and perhaps even beyond? If the President was as preoccupied as he seems to have been with this question, and he took the active liberties that he did with norms counseling against any contact with the FBI on this issue, are there others with whom he discussed his intentions? Are there also other, related actions that he took to fend off the legal inquiry and risks he was concerned about?

The President’s conversations with Mr. Comey are not protected by any claim of executive privilege. This is not a question of the communication that, but for a waiver, would have been privileged. It was not a privileged communication in the first instance. It was an inquiry made by the potential subject or target of an investigation on his own behalf, seeking information or assurances relating to his own legal position. Mr. Comey is not bound to hold the substance of those conversations confidential, and he is certainly under an obligation to testify before the Congress or any legal proceedings about them should he be asked to do so.

Yet it is important to note that the absence of a privilege protecting these communications with Mr. Comey does not mean that the White House may not seek to shield the President’s other communications with other advisers on the subject of the Russia probe. The task it will face is establishing that the President was addressing policy matters in his official capacity, not acting as an individual striving to protect his personal legal interests in a criminal investigation.

Assume, however, that the President will insist there was some official connection to the inquiry in his discussions with the FBI Director—that knowing his status in general terms would enable Mr. Trump to judge how freely he could act on Mr. Comey’s dismissal, or on other matters relating to the Russian probe. It is certain that any such claim of privilege, asserted against the demand for this information in a criminal investigation, would fail. The Supreme Court in United States v. Nixon acknowledged that presidential communications enjoyed a “presumptive privilege," but it was presumptive only—not absolute, as the Nixon Administration claimed. This privilege would yield necessarily to the requirements of collecting all information “to do justice in criminal prosecutions."

Is there on these facts a risk of an investigable claim of attempted obstruction? As always in these matters, the facts govern. But here, again, is where the violation of norms may influence judgments, by prosecutors or courts, about whether an inquiry into this is justified. The President has admitted that he called the Director of the FBI to determine whether he was being investigated in what has been officially declared to be an active, ongoing criminal investigation. He has publicly noted his frustration with this investigation, even while dismissing its significance, because it poses a threat at least to his political interests and conceivably to the legal interests of known political associates. Remarkably, in the NBC interview, he openly acknowledged having in mind the Russian probe, and his objection to it, when he decided to dismiss Mr. Comey. While Mr. Trump also stated that he knew the investigation would have to go on, and that it might be lengthened by the vacancy in the Bureau leadership that the Comey dismissal created, he has now added to the public record a clear link between his decision to fire Comey and his complaints about the handling of the Russia probe. It is in connection with this same investigation, of course, that he asked Mr. Comey for assurances that he was not personally at risk.

Moreover, the President not only sought these assurances three times. On at least one occasion, he told NBC News, he and the Director discussed whether Mr. Comey would remain in office. As the President recounts it, Mr. Comey expressed his preference to continue in the position, but Mr. Trump was noncommittal: "And I said you'll know consider and we'll see what happens…" In other words, while pressing Mr. Comey about his own status, he refused to confirm to the Director that he would keep his job.

It is within this context, as it became publicly known that an investigation was proceeding, that the President subsequently took one additional action that could influence the judgment of whether there is a basis for a concern with obstruction. He fired Comey. He had the legal authority to do so and the action of firing the Director does not constitute in and of itself obstruction. However, as a central fact within a narrative in which the president's actions have to be interpreted, the storyline is problematic. It certainly does not help the President’s cause that the White House delivered an explanation of the reasons for the firing, and the persons responsible for recommending it, that came apart within 24 hours. It now appears that the President—the one pushing Comey on his own legal status—was the one most convinced that he should be removed from his office. That was the not the original account, and prosecutors are more likely to suspect questionable conduct, and look into it further, when stories change.

The President may have landed himself in these difficulties simply because of his insensitivity to the requirements for safeguarding the integrity of the legal process. That is to say, he may not have intended to commit anything like obstruction, or any other crime, but has instead blundered into this position because he does not recognize or respect norms and does not appreciate legal process or institutional boundaries. There is a hint of this, or perhaps more, in press reports that one of his principal objections to Mr. Comey was that the FBI Director might not have been "loyal."

Was Mr. Comey's stance on the President’s legal status, and on the Russia-Trump campaign legal probe, a question for Mr. Trump of the Director’s “loyalty”? If so, it would not be irrational or irresponsible for the question to be asked whether it was for "loyalty" that Mr. Trump was testing when pressing Comey three times about his legal status, as the Director’s tenure in office was left hanging in the air. It would also not be unreasonable to ask whether Mr. Comey lost his job because he failed this loyalty test.

The answers to these questions will determine whether the problem now confronting the President has grown beyond a simple indifference to, or ignorance of, basic norms in the conduct of his office. But whatever the answer—and it is far too early to tell—it is high time for the President to learn and walk well within the ethical lines, and to absorb and heed those norms.