Donald Trump is in the soup over a tweet he posted a day after former national security adviser Michael Flynn pleaded guilty to lying to the FBI about his conversations with Russian ambassador Sergey Kislyak:
You’ll note the tweet asserts that Trump forced Flynn to resign on Feb. 13 in part because Trump knew he’d lied to the FBI. That would imply Trump knew Flynn had committed a federal crime before he asked then-FBI director James Comey to close his agency’s investigation into Flynn later that month—a request that special counsel Robert Mueller and/or Democrats prosecuting an impeachment trial could thus argue constituted obstruction of justice.
The administration’s response to this pickle has three prongs (mmm, pickle prongs):
1. Denying that Trump ever told Comey to drop the investigation of Flynn. This is consistent with the president’s previous insistence that Comey is lying about what Trump asked him to do. (Comey’s version of events, for what it’s worth, is documented in a memo that he wrote “shortly after” Trump made the alleged request.)
2. Asserting that Trump lawyer John Dowd, not Trump himself, wrote the tweet. “Trump’s attorney, John Dowd, told Reuters in an interview on Sunday that he had drafted the Saturday tweet and made ‘a mistake’ when he composed it,” the wire service reported.
It’s tough to figure out exactly what the administration’s end game is with this or even if it’s true—as others have pointed out, the tweet’s syntax and rhythm sound like Trump, not someone who writes legal briefs. So let’s play it out under two scenarios:
Dowd didn’t write the tweet and is claiming he did to cover for Trump. The idea here would presumably be to create plausible deniability during a potential obstruction prosecution—Trump claiming that the tweet was the work of a bumbling adviser rather than the equivalent of personal testimony. Dowd himself seems to be arguing as much, telling Reuters that he was merely working in Twitter “shorthand” and “should have put the lying to the FBI in a separate line referencing [Flynn’s] plea.” But investigators could hypothetically demand text/phone records to evaluate the truth of the claim that Dowd wrote the tweet—and could argue that his potential claim to attorney-client privilege on the subject should be waived because he spoke about it publicly. In other words, if Trump did write the tweet, it’s not like Dowd claiming to have done so is a foolproof way of preventing anyone from finding out.
Meanwhile, Dowd is now claiming to the Washington Post that another Trump lawyer—Don McGahn—actually did tell Trump in January that Flynn had given the FBI the same account of his Kislyak conversations that he’d given Vice President Mike Pence, i.e. a dishonest one. But the Post adds that “a person familiar with McGahn’s account says the White House counsel did not give Trump any indication in January that Flynn had violated the law in his FBI interview.” So the Trump legal team’s argument is that Trump didn’t write the tweet, but did know that Flynn had lied to the FBI, but didn’t know that’s a crime.
Now let’s consider the other possibility:
Dowd is telling the truth and did write the tweet. This creates problems for Trump too! For one, prosecutors could ask Dowd to testify about everything he knows about what Trump knew when Flynn got fired, again making the argument that attorney-client conversations about the subject stopped being privileged when one of the parties started blabbing about them in public. For another, it would still mean that Trump’s lawyer, whose job is supposed to be keeping him out of jail, just created ammunition for a potential obstruction prosecution out of thin air.
In any case, let’s move on to the third prong of the administration’s strategy …
3. Arguing that the president can’t commit obstruction of justice because he is justice. Or as Dowd put it in yet another butt-covering interview, this one with Axios: “[The] president cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case.” Needless to say, there are many people who disagree with this notion, among them the congressional representatives who included obstruction of justice in the articles of impeachment that were drafted (though never voted on) against Nixon.
In summary, Team Trump argues that the president didn’t actually admit to obstruction of justice because 1) the former FBI director is lying about an incident he documented in a contemporaneous memo, 2) the president doesn’t write his own tweets, 3) the people who do write them aren’t competent enough for their words to be used as evidence, 4) the president didn’t know that lying to the FBI is a crime, and 5) there is no such thing as presidential obstruction of justice anyway.
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