The president is not being well served by his lawyers.
As I note in my column this morning, there was a Trump tweet on Saturday afternoon asserting that the president knew that then–National Security Adviser Michael Flynn had lied to the FBI when Trump fired Flynn in February. (Flynn, of course, pled guilty on Friday to one count of lying to the FBI.)
John Dowd, the president’s personal attorney, acknowledges that he composed the tweet and sent it to Dan Scavino, the White House social-media director, for posting.
I had to fire General Flynn because he lied to the Vice President and the FBI. He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!— Donald J. Trump (@realDonaldTrump) December 2, 2017
The matter is significant because, as my column contends, Special Counsel Mueller’s investigation is essentially an obstruction probe. The day after firing Flynn, Trump had the White House meeting at which — according to the testimony of former FBI director James Comey —Trump pressured Comey to drop the Flynn investigation. (We note that the president denies pressuring Comey and that the FBI investigation was never dropped.) Thus, if Trump knew that Flynn had lied to the FBI, he was asking Comey to drop a case against someone he knew had committed a crime.
Let’s put aside the serious constitutional (and practical) issue of whether a president may be prosecuted in a judicial proceeding for obstruction. The question of whether Trump obstructed the investigation does not rise or fall on whether Trump knew that Flynn had committed a crime (in theory, one could impede an investigation to prevent the FBI from finding out whether there was a crime). Nevertheless, it is obviously a more serious matter for a president to urge the dropping of a case against a friend known to have committed a crime rather than merely suspected of having done so.
One would think that no one would grasp this distinction more firmly than the president’s own lawyer, whose job is to defend Trump against being implicated — not to issue tweets that tend in the opposite direction. It is difficult to understand what Dowd was thinking in light of facts he should have at his fingertips.
It is difficult to understand what Dowd was thinking in light of facts he should have at his fingertips.
At the time Flynn was having the contacts with Russian ambassador Sergei Kislyak that led to the Justice Department’s decision to have the FBI interview Flynn, the acting attorney general was Sally Yates. She was very involved in the investigation and made the decision to inform the Trump White House that the substance of Flynn’s contacts with Kislyak was not being accurately reflected in public statements by Trump-administration officials. Yates later testified before Senator Lindsey Graham’s subcommittee of the Senate Judiciary Committee.
In Yates’s testimony, she pointedly stated that she had declined to tell White House Counsel Don McGahn about how Flynn’s interview had gone. Graham asked, “What did you tell the White House?” In the course of a long response, Yates stated, “We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. [ACM note: She misspoke; it was actually January 24.] Mr. McGahn asked me how he did and I declined to give him an answer to that.”
Moreover, as the Wall Street Journal’s editors noted last Friday, contemporaneous reporting in February 2017 indicated that Flynn had cooperated and would not be charged. For example, CNN reported on February 17 that “the FBI interviewers believed Flynn was cooperative and provided truthful answers” during the interview.
The Journal added that a congressional source says that then-Director Comey told the House Intelligence Committee on March 2 that the FBI agents who interviewed Flynn believed he had not intentionally misled them, though Flynn might have forgotten some details. Moreover, in Comey’s written congressional testimony after he was fired by Trump, Comey addressed his meeting with the president on February 14 (i.e., the day after Flynn was fired). The former director stated that he had agreed with the president that Flynn “is a good guy.”
In sum, there is a good deal of evidence for the proposition that Trump did not know Flynn had lied to FBI agents in his January 24 interview. In fact, there is ample reason to believe that the FBI didn’t believe Flynn had lied — i.e., that the Mueller investigation drew an aggressive conclusion about the interview that second-guessed the agents who had actually questioned Flynn and had assessed his credibility based on personal, real-time observation (a point made moot by Flynn’s guilty plea, in which he acknowledges lying to the agents).
Knowing all this, it is very difficult to understand Dowd’s tweet.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.