Jurisprudence

Trump’s Fox & Friends Interview Was Even Worse Than It Looked

How the president may have incriminated himself during his latest TV appearance.

Donald Trump, James Comey, and Reince Priebus side-by-side-by-side.
Donald Trump, James Comey, and Reince Priebus.
Photos by Chris Kleponis-Pool/Getty Images, Patricia Schlein/Star Max/GC Images, Win McNamee/Getty Images.

Last week, Donald Trump gave his first television interview in months. In speaking to the amicable hosts at Fox & Friends, the president inflicted an impressive amount of legal damage on himself on a number of different fronts. It’s already been noted that Trump’s words likely hurt his interests as they relate to his personal attorney Michael Cohen’s various legal woes. What’s not been commented upon as widely is that Trump’s account of his 2013 trip to Moscow might provide new evidence of obstruction of justice.

First, it’s worth walking through the multiple ways in which Trump damaged Cohen and, by extension, himself. As Slate’s Ben Mathis-Lilley noted, Trump’s statement that Cohen had handled a “tiny, tiny little fraction” of his legal work and was more “a businessman” than a full-time lawyer was, within hours, cited in a legal filing by prosecutors in the Southern District of New York as evidence that Cohen’s claims of attorney-client privilege for materials seized in FBI raids had been overly broad.

Similarly, Stormy Daniels’ lawyer Michael Avenatti ‏has been taunting the president on TV and Twitter, saying that he intends to make hay of Trump’s other Cohen-related comments. Avenatti noted how Trump’s remarks that Cohen represented him “with this crazy Stormy Daniels deal” appeared to be in direct conflict with what Trump had previously said on the matter. Further, Avenatti is seeking to depose the president on the question of his involvement in the Daniels case, and this contradictory confession has the potential to make that more likely. If Trump was represented by Cohen in the matter, than the president’s testimony could resolve some of the central questions of the dispute. “I think it’s going to add to the foundation,” Avenatti told CNN, “that we have as it relates to our efforts to depose the president.”

Trump’s statements about issues implicated by special counsel Robert Mueller’s Russia probe could prove even more damaging. Here’s the relevant passage of the interview, in which the president discusses the James Comey memos that were released the previous week:

They’re phony memos. He didn’t write those memos accurately. He put a lot of phony stuff—for instance, I went to Russia for a day or so, a day or two, because I owned the Miss Universe pageant. So I went there to watch it because it was near Moscow, so I go to Russia. Now, I didn’t go there—everybody knows the logs are there, the planes are there. He said, ‘I didn’t stay there a night.’ Of course I stayed there, I stayed there a very short period of time, but of course I stayed. Well his memos said ‘I left immediately’—I never said that. I never said I left immediately.

Trump is referring to a memo in which Comey claimed that during their private Jan. 28, 2017, White House dinner, Trump broached the subject of the alleged “golden showers” tape. According to Comey:

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. He said he arrived in the morning, did events, than showered and dressed for the pageant at the hotel (he didn’t say the hotel name) and left for the pageant. Afterwards, he returned only to get his things because they departed for New York by plane that same night.

As former federal prosecutor Liam Brennan wrote in Slate last week, this episode would be critical to proving obstruction of justice by President Trump. The most difficult aspect of proving obstruction, Brennan noted, is demonstrating that the subject is acting with “corrupt intent.” Prosecutors can do this by pointing to efforts to deceive investigators. Brennan argued the revelation, first reported by Bloomberg, that Trump did stay in Russia overnight—and thus, that any statement he made to Comey to the contrary would have been an effort to mislead an investigator—proved corrupt intent.

Now Trump appears, on Fox & Friends, to be lying about his lie. Well, Trump’s defenders would posit, it’s just Comey’s word against Trump’s. But even if you take the president’s word over that of the former FBI director and his comprehensive contemporaneous notes, there’s still a problem. As Comey noted in a second memo, Trump allegedly made this claim about not saying overnight in Russia a second time—this time with a witness in the room.

Here’s what Comey said of a Feb. 8, 2017, Oval Office meeting that occurred with former Chief of Staff Reince Priebus “seated to my right”:

The President brought up the “Golden Showers thing” and said it really bothered him if his wife had any doubt about it. He then explained, as he did at our dinner, that he hadn’t stayed overnight in Russia during the Miss Universe trip.

What’s further notable is that Priebus tried to interrupt this line of thought:

Twice during this part of the conversation, Reince tried to interject a comment about the [redacted] and “why it was even in there,” but the President ignored him.

It’s also worth noting that, per Comey’s Feb. 8 memo, Priebus also asked Comey as part of a “private conversation” if there was a FISA warrant out on Michael Flynn. This information would have been useful for any potential confederate of Flynn’s and could itself be evidence of obstruction of justice if anyone with that knowledge sought to influence Flynn. Remember, Yahoo News reported that Trump was communicating with Flynn as late as April 2017, allegedly encouraging him to “stay strong.” The New York Times, meanwhile, reported last month that Trump’s former attorney John Dowd broached the possibility of a pardon with Flynn’s attorney in a further possible attempt to obstruct the probe. Which is all just to say that Priebus’ role here could be integral and he could have a strong motivation to cooperate with investigators if his own actions come under scrutiny, as Comey’s memo indicates they might.

We know that Priebus was interviewed by Mueller this past October. Priebus also apparently took his own handwritten notes, documents that reference the president’s interactions with Comey.

Indeed, the New York Times reported in January that Mueller’s team had evidence—including the Priebus memos—that corroborated parts of the Comey memos. From the Times:

Mr. Mueller has also substantiated claims that Mr. Comey made in a series of memos describing troubling interactions with the president before he was fired in May.

The special counsel has received handwritten notes from Mr. Trump’s former chief of staff, Reince Priebus, showing that Mr. Trump talked to Mr. Priebus about how he had called Mr. Comey to urge him to say publicly that he was not under investigation.

If any more of what Priebus wrote down or told Mueller contradicts the president’s claims, that would be further evidence he’s lying, which would be further evidence of his corrupt intent, which would be further evidence of obstruction of justice.

As the Washington Post reported earlier this month, Mueller’s team had told Trump’s lawyers they are “preparing a report about the president’s actions while in office and potential obstruction of justice.” If Mueller watches Fox News, he could have one more big chunk of evidence to make his case.

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