Special counsel Robert Mueller is eager to get inside President Donald Trump’s brain. The New York Times published about four dozen questions supposedly being entertained as the stuff of a Mueller interview with Trump. “What did you think…” begins a question about Jeff Sessions. “What did you think…” begins a question about the appointment of the special counsel. “What did you think…” about James Comey’s testimony before the Senate. “What did you think…” about other Comey testimony. Many are the questions that begin “What was the purpose…” and “What was your reaction…” Most of all, the special counsel is interested in the thinking that went into giving FBI director James Comey his walking papers. He hopes to use any interview with Trump to divine whether the Comey firing was a crime.
If Mueller is interested in how and why Trump made the decision to fire Comey, it would clearly be relevant what sort of legal advice the president was given about his power over the FBI director’s employment. It would indeed look bad for Trump if, in the days before he fired Comey, he had been told by some senior legal official that letting the FBI director go for the wrong reason amounted to obstruction of justice.
But what if, on the other hand, the president had been advised by a top legal official, one with knowledge of the niceties and technicalities, that the chief executive had the power to sack his FBI director whenever he wanted? If the president were acting on such official advice, wouldn’t that argue against the suggestion that Trump was somehow acting, with mens rea, in a knowingly corrupt fashion?
As it turns out, the president was given advice on this point by a top legal official, an official who wrote the conversation down.
“I had dinner with President Trump in the Green Room at the White House last night at 6:30 pm.,” then-FBI director Comey wrote January 18, 2017, in a memo for his file—oh yes, and for sharing with top aides Andrew McCabe, James A. Baker and James Rybicki. As Comey recounted it, the president rudely monopolized the conversation: “The President spoke an overwhelming majority of the time. He never asked me an open-ended question or left it to me to choose a topic of conversation.” Comey is at pains to show he bore the boor manfully.
Interestingly, Trump did ask his FBI director an open-ended question: “He touched on my future at various points,” Comey wrote. “The first time he asked ‘so what do you want to do …’” Trump said he could understand if the director had had enough and might want “to walk away,” but he rambled on that packing it in might make it look as though Comey “had done something wrong.”
Then comes the important bit: According to Comey, the president asserted “that he of course can make a change at FBI if he wants, but he wants to know what I think.” And what did Comey think? What legal advice did he provide the president? “I responded by saying that he could fire me any time he wished.”
Note what Comey didn’t say. He didn’t say Trump could fire him any time except for when the director was engaged in an investigation touching on the administration. He didn’t say Trump could fire him but only if the president had a good reason. He said Trump could fire him “any time he wished,” which implies Trump could fire him for any reason, or no reason at all. Later in the same paragraph, it’s worth noting, Comey assured Trump “that he could count on me to always tell him the truth.”
Comey told Trump’s top aide the same thing. In a private West Wing meeting one day in early February 2017, chief of staff Reince Priebus asked the FBI director how his tenure with the bureau worked. “I explained that I had a ten-year term,” Comey wrote, but added “the President could fire me anytime he liked.”
Even after he was kicked to the curb, Comey at first allowed that it was the president’s prerogative: “When I was appointed FBI Director in 2013, I understood that I served at the pleasure of the President.” Comey said to the Senate Select Committee on Intelligence: “I understood that I could be fired by a President for any reason or for no reason at all.”
But now, in his book, Comey has a different legal understanding: He assumes that Mueller’s team is investigating is whether in asking if he could let Michael Flynn go, and then following that by “firing me, President Trump was attempting to obstruct justice, which is a federal crime.”
So much for anytime, any reason or no reason at all.
That said, there’s no doubt, from the questions published by the Times, that Mueller is angling for information that could be used to make an obstruction case. Angling so hard, in fact that some of the obstruction-dredging questions are simply strange. “What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?” The way the New York Times interprets the question is that it “suggests that Mr. Mueller wants to know whether Mr. Trump’s criticism is an effort to damage the F.B.I. while it investigates the president’s associates.” That may very well be Mueller’s agenda with the question. But are we to believe that Trump’s sniping at Comey has any motivation beyond getting back at someone who’s on a national tour promoting a book critical of him? And as for McCabe, is the Justice Department’s inspector general part of the conspiracy?
Actually, what makes the question about McCabe particularly odd is that you don’t need to waste precious deposition time to know why Trump has been critical of McCabe—he returns to the subject repeatedly in the conversations memorialized by Comey. In their Green Room dinner, Trump asks “whether ‘your guy McCabe’ has a problem with me, explaining that ‘I was pretty rough on him and his wife during the campaign.’” (McCabe’s wife was a Democratic candidate in Virginia whose campaign had been funded in large part by a PAC led by then-Virginia governor and Clinton confidante Terry McAuliffe.) Comey assured Trump that “Andy was a true professional and had no problem at all.”
Trump didn’t seem to buy the assurance. Later in the dinner the president “asked again about ‘your guy McCabe,’” Comey wrote. The next time they met, in the Oval Office, McCabe came up again: “He asked (as he had at our dinner) whether my deputy had a problem with him and recounting how hard he had been on the campaign trail, saying ‘the number 2 guy at the FBI took a million dollars from the Clintons.’” Come March, in a phone call Trump worried again about McCabe but said he was relying on Comey’s description of McCabe as “an honorable guy.” Does Mueller need a sit-down with Trump to figure out that Trump has never trusted McCabe, as opposed to the notion that Trump was going after McCabe as a way to undermine public confidence in the FBI (something that McCabe seems to have done very successfully all on his own).
For all this focus on Trump’s thinking and whether it amounts to corrupt intent, Mueller has not, as some had erroneously predicted, narrowed his probe into the question of obstruction to the exclusion of questions about collusion with the Russians. Though the obstruction-probing questions dominate, there are a raft of tough questions directly challenging the president about Russia. For example: “What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?” And, “What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?” Mueller would have the president answer about a Trump Tower Moscow deal pitched by an operator named Felix Sater to Trump’s fixer Michael Cohen during the campaign. Cohen has long claimed that the deal was briefly considered by himself, not Trump, and then shelved. If that story isn’t straight, investigators will likely at some point have the facts, given the FBI raid on Cohen’s office and residences.
One last observation about the Mueller questions involves what the list doesn’t include. The most serious allegation about Michael Cohen—one that comes from the infamous Steele dossier—is that the fixer went to Prague in late summer/early fall of 2016 to meet Russian officials and to pay off East European hackers as part of a vast conspiracy to throw the U.S. election. Cohen has repeatedly and vehemently denied making any such trip and has made his passport available as proof. And yet writers for McClatchy Newspapers have recently reported, on the say so of anonymous sources, that the Mueller team had evidence Cohen skulked through Germany to Prague during the campaign. The report was met with skepticism, which appears to have been warranted given that Mueller doesn’t propose to ask the president anything about any supposed Prague confab. However unlikely the Prague story may be, it’s always possible Mueller is holding some things back to keep his prey unwitting and unprepared.
If Trump consents to a special counsel interview he better think long and hard about what he was thinking and when. Because what he says about what he thought, how he reacted, and what his purposes were, can and will be used against him.
