RUTHFULLY YOURS

Can we all stipulate that no one ever wants to be the subject of an investigation? If you are innocent of wrongdoing, the fact that there is no meritorious criminal case is often beside the point.

There is a stigma attached to being an investigative subject. Many people who do not appreciate how politicized the legal system has become will conclude that if you are under investigation, you must have done something wrong. Some other people who know precisely how politicized the legal system has become, and like it that way, will exploit the fact that you are under investigation to stigmatize you. Public perception aside, being the subject of an investigation is also debilitating because of the time it takes to defend oneself, the financial burden of retaining lawyers (and, for a public official, retaining press agents who can deal with the media frenzy), and the anxiety that makes it difficult to focus on one’s job and other responsibilities.

President Trump is now in the grip of this situation. This weekend, it produced some of the more excruciating news coverage in recent memory as one of his lawyers, Jay Sekulow, was tendentiously grilled on the question of whether the president has conceded that he is under investigation.

Like many Trump problems, this one was caused by a Trump tweet. Foolishly allowing himself to be baited by a Washington Post report that special counsel Robert Mueller is now weighing whether the president committed an obstruction crime, Trump tweeted: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt[.]”

Clearly, Trump is exasperated over what he sees as much ado about nothing. Constitutionally, the president does not need a reason to fire the FBI director, who — like every unelected subordinate official in the executive branch — serves at the president’s pleasure. Before Trump fired FBI Director James Comey, Rod Rosenstein, the Trump-appointed deputy attorney general, wrote a memorandum recommending that Comey be dismissed. In the subsequent furor over Comey’s dismissal — largely stoked by Trump’s conflicting reasons for firing the director, which first adopted but then parted company with Rosenstein’s memo — Rosenstein appointed Mueller as special counsel. In that role, Mueller is not independent — he answers to Rosenstein (because Jeff Sessions, the attorney general, is recused). So technically, Trump is correct: The man who wrote the memo endorsing Comey’s removal has authorized an investigation that is reportedly probing whether that removal somehow constituted a felony.

But of course, that seeming incongruity did not grab the anti-Trump media’s attention. What journalists focused on like a laser on was the first four words of the president’s tweet: “I am being investigated.” “Ah-hah!” they squealed, Trump has confirmed that he is under investigation. Thereupon, we were treated to heated debates — including an uncharacteristically cringe-inducing one Fox’s Chris Wallace conducted with Sekulow — over whether Trump was acknowledging that he is under investigation … or been told he was under investigation … or … something.

This is all about as pointless as it gets. Whether Trump’s tweet is an express admission that he believes he is under investigation is irrelevant.

The Trump camp plausibly says the tweet was Trump’s reaction to the Post’s report that he is under investigation (which has been echoed by other media outlets); it was not an admission that the report is true. Sekulow says the president has not been formally advised that he is the subject of an investigation. The tweet was just the Trumpian way of reflecting, in no more than 140 characters, the Post’s anonymously sourced claim that he is.

Sekulow wanted to attack the premise of the investigation without conceding that there was an investigation. Wallace thus kept returning to whether there was an investigation, so the conversation became circular and testy. Sekulow had similar exchanges on other Sunday shows — none of them edifying.

Trump is obviously under investigation for obstruction. I believe the suggestion that he committed obstruction is baseless, but even if I am right, that doesn’t mean it won’t be investigated.

In his recent Senate Intelligence Committee testimony, former-Director Comey gave testimony that transparently tracked the obstruction statute. The statute criminalizes corrupt “endeavors to influence … the due and proper administration of the law” in a “pending proceeding” before a government agency. Comey stated:

It’s my judgment I was fired because of the Russia investigation. I was fired in some way to change — or the endeavor was to change the way the Russia investigation is being conducted.

Thus, through Comey’s eyes, we are not to see his removal as something Trump had indisputable authority to order. Instead, our frame of reference is the obstruction statute’s terms: The removal becomes an “endeavor” to influence the FBI’s manner of conducting the so-called Russia investigation (implicitly, the government agency’s administration of law in a pending proceeding — notwithstanding that there are reasons to doubt that a counterintelligence probe is a “pending proceeding” in which the FBI “administers the law”).

To this, add Comey’s testimony regarding his Valentine’s Day conversation with Trump about former National Security Adviser Michael Flynn, who had been fired the previous day. That is the one-on-one discussion in which Comey alleges that Trump said he “hoped” Comey would “see your way clear … to letting Flynn go” — i.e., drop the Flynn investigation.

At the time it happened, the then-director clearly did not perceive this as an obstruction crime. He did not make any report to his superiors, as Justice Department officials must do if they witness criminal activity; he did not report the matter to Congress; he told both Trump and Congress in the weeks afterward that Trump was not a suspect; and he testified in the Senate on May 3 (i.e., nearly three months after the Flynn conversation) that never in his experience had he been ordered (at least by the Justice Department) to shut an investigation down due to political reasons. Yet, having now been removed from office by Trump, the former director’s current take on the matter is: “I don’t know” whether Trump’s behavior rose to the level of obstruction, and therefore “that’s Bob Mueller’s job to sort that out.”

Comey further said he leaked his memo-to-self about the Flynn conversation in the hope of forcing the appointment of a special counsel. He not only got the result he wanted; in Mueller, he got a lawyer whom he describes as a perfect choice for the job — and a close friend, former Justice Department colleague, and his predecessor as FBI director. We can reasonably assume that Mueller will give respectful attention to Comey’s account and interpretation of the facts.

Consequently, the way the former FBI director has set the table made it virtually certain the special counsel would investigate Trump for obstruction. Comey has posited that his removal should be evaluated under the obstruction statute, and that the special counsel must decide whether Trump’s February 14 remarks about Flynn amounted to obstruction. Even if you believe, as I do, that the suggestion of obstruction based on these facts is meritless, Comey made it inevitable that, if a special counsel were appointed, Trump would be the subject of an obstruction investigation.

The critical fact is that there is an obstruction investigation. Whether Trump has admitted as much is beside the point. So is Sekulow’s insistence that the president has not been formally notified that he is under investigation.

Prosecutors are under no obligation at the early stage of an investigation to alert the subjects that they are subjects. If the special counsel’s staff were to request or subpoena information from the president, his lawyers would almost certainly respond by asking what Trump’s status is — i.e., is he a “subject” or a “target” who could be indicted, or a mere witness? At that point, the special counsel would likely answer this status question. But until something along those lines happens, it would be routine and unremarkable for Trump to be a subject of the investigation, even if Mueller’s staff has not told Trump’s attorneys that this is the case. Being a subject would not necessarily mean that there is a prosecutable case or that Trump would ultimately be charged.

In the greater scheme of things, Trump’s tweets are a sideshow. They are not doing Trump any favors, and they do not tell us anything of consequence about what the special counsel is up to.