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Tue Jul 31, 2018, 09:15 AM

Flynn, Comey, and Mueller: What Trump Knew and When He Knew It

Flynn, Comey, and Mueller: What Trump Knew and When He Knew It



https://www.nybooks.com/daily/2018/07/31/what-trump-knew-and-when-he-knew-it/

The central incident in the case that the president obstructed justice was provided by former FBI Director James B. Comey, who testified that Trump pressed Comey, in a private Oval Office meeting on February 14, 2017, to shut down an FBI criminal investigation of Trump’s former national security adviser, Lt. Gen. Michael Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” Comey has testified the president told him.

In an effort to convince Mueller that President Trump did not obstruct justice, the president’s attorneys have argued that the president could not have broken the law because the president did not know that Flynn was under criminal investigation when he pressured Comey to go easy on Flynn. In a confidential January 29 letter to the special counsel first reported by The New York Times, two of the president’s attorneys, John Dowd (who no longer represents Trump) and Jay Sekulow, maintained that the president did not obstruct justice because, even though Flynn had been questioned by the FBI, Trump believed that the FBI investigation was over, and that Flynn had been told that he’d been cleared.

On its face, this is a counter-intuitive argument—for if Trump believed that Flynn had been cleared and was no longer under investigation, there would have been no reason for the president to lean on Comey to end the FBI’s investigation—telling Comey that Trump hoped that Comey would be able to “see your way clear to letting this go.” Yet Trump’s attorneys have pursued this line of argument with the special counsel because perjury and obstruction cases depend largely on whether a prosecutor can demonstrate the intent and motivation of the person they want to charge. It’s not enough to prove that the person under investigation attempted to impede an ongoing criminal investigation; the statute requires a prosecutor to prove that the person did so with the corrupt intent to protect either himself or someone else from prosecution.

If, therefore, Trump understood the legal jeopardy that Flynn faced, that would demonstrate such intent—and make for a much stronger case for obstruction against the president. Conversely, if Trump believed that Flynn was no longer under criminal investigation, or had been cleared, the president could not have had corrupt intent. But previously undisclosed evidence indicates just the opposite—that President Trump was fully informed that Flynn was the target of prosecutors.

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