Trump’s Damning Defense

A secret letter from Donald Trump’s counsel doesn’t exonerate the president. It implicates him.

Robert Mueller, Donald Trump.
Robert Mueller, Donald Trump. Photo illustration by Slate. Photos by Nicholas Kamm/AFP/Getty Images, Olivier Douliery-Pool/Getty Images.

Last weekend, the New York Times published a long letter that was sent by President Donald Trump’s lawyers to special counsel Robert Mueller in January. The letter argued that Trump shouldn’t have to give an interview to Mueller’s investigators, in part because the president is entitled to pardon anyone, fire anyone, or shut down any investigation for any reason. But beneath these imperial claims, the letter inadvertently substantiates much of the case against Trump. Here are the key points, in chronological order.

1. The White House investigation of Michael Flynn

During the transition, Flynn, then the incoming national security adviser, secretly talked to Russia’s ambassador about easing sanctions. When questioned by the White House and the FBI, he denied having done so. “Within seventeen days of first being advised by [Justice Department] leadership” of Flynn’s deception, says the January 2018 letter, Trump “took decisive action” and “ensured swift justice” by demanding Flynn’s resignation.

But the letter tells a different story. White House counsel Don McGahn briefed Trump about DOJ’s warning on Jan. 26, 2017. Then, after a follow-up meeting on Jan. 27, there’s an unexplained two-week gap. The letter cites no further action by the White House until Feb. 8, when then–Chief of Staff Reince Priebus, in a meeting with Flynn, McGahn, and McGahn’s deputy counsel, questioned Flynn about his phone calls with the ambassador.

Why did Priebus and McGahn snap into action on Feb. 8? Maybe because that’s the day the Washington Post, tipped off by “reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats,” contacted Flynn to press him about the calls. Vice President Mike Pence’s aides later claimed that Pence didn’t learn of Flynn’s deception until the Post published its story on Feb. 9. So it’s likely that when the Post began making inquiries for that article on Feb. 8, that’s what moved Priebus and McGahn to action. The letter offers no other explanation.

This chronology suggests that Trump and his aides had no intention of acting on DOJ’s private warning. It was the press that forced their hand. Even after Priebus and McGahn advised Trump on Feb. 10 to remove Flynn, the letter cites no action until three days later, when the Post again forced Trump’s hand by reporting that DOJ had warned the White House about Flynn on Jan. 26. This supports previous reporting that Trump resisted firing Flynn, despite the Feb. 10 advice. Trump dragged his heels against justice and national security the whole way.

2. The Feb. 14, 2017 meeting with James Comey

On Feb. 14, 2017, hours after Flynn resigned, Trump asked other officials to leave the Oval Office so he could be alone with then–FBI Director Comey. After the meeting, Comey wrote in a memo that during their encounter, Trump said of Flynn: “He is a good guy. I hope you can let this go.” In June 2017—after Trump fired Comey and Comey’s account was made public—Trump’s lawyer at the time, Marc Kasowitz, insisted that Trump “never in form or substance directed or suggested that Mr. Comey stop investigating anyone.”

In the January 2018 letter, that claim of innocence has narrowed. The letter denies only “that the President said these words to Mr. Comey.” It allows for the possibility that Comey’s account is close to verbatim, essentially conceding that Trump used the word “hope.” “Comey may or may not have misunderstood, misinterpreted or misremembered the President’s alleged comments,” says the letter. Even if Trump “made a comment to Mr. Comey that Mr. Comey claimed to be a direction,” says the letter, Trump “had every right to express his view of the case.” So the gist of the conversation no longer seems to be in much dispute.

3. Trump’s state of mind

The letter argues that when Trump spoke to Comey on Feb. 14, the president couldn’t have meant to obstruct an investigation of Flynn, because “for all intents, purposes, and appearances, the FBI had accepted Flynn’s account [and] concluded that he was confused but truthful.” But all of the testimony and news reports cited in the letter as evidence for this claim are dated Feb. 17 or later. If Trump’s lawyers had managed to find pre–Feb. 14 evidence, they would have included it. The letter also concedes that in response to a direct question by McGahn on Jan. 27, DOJ had refused to confirm or deny that it was investigating Flynn. So there was no basis on Feb. 14 to think that the investigation of Flynn was over. Which is why Trump said what he said to Comey.

4. Rod Rosenstein’s role in the Comey firing

Trump fired Comey on May 9, 2017. The letter claims that Deputy Attorney General Rosenstein “helped to edit Mr. Comey’s termination letter and actively advised the President accordingly.” Previously, the Times has reported that McGahn edited the termination letter and that Rosenstein received a copy of it. But the January document from Trump’s attorneys is the first to claim that Rosenstein edited the termination letter.

This is significant because the original termination letter, as described to reporters, was four pages long, single-spaced, and “emotional and critical“ with an “angry, meandering tone.” It included complaints about the investigation of Hillary Clinton’s emails—presumably, given Trump’s record, it accused Comey of going easy on her—and about Comey’s unwillingness to tell the public that Trump wasn’t under investigation in the Russia matter. Nearly all of this was removed from the published letter. So the editing process, arguably, was a cover-up of Trump’s corrupt intent in firing Comey. If Rosenstein was involved, that could implicate him in obstruction of justice.

5. The May 10, 2017 meeting with Russian officials

The letter makes much ado about Trump’s interview with NBC’s Lester Holt on May 11, 2017. It argues, correctly, that in this interview, Trump didn’t say he had fired Comey because of the Russia investigation. But the letter offers no such defense of Trump’s reported comments to Russia’s ambassador and its foreign minister in a private Oval Office meeting on May 10, 2017. The Times, quoting an official White House document, reported that during this meeting Trump told the Russians: “I just fired the head of the FBI. He was crazy, a real nut job. … I faced great pressure because of Russia. That’s taken off.”

The letter doesn’t even try to rebut this account. It simply claims that if Trump said “such things,” they’re “irrelevant to the constitutional analysis” and do “not establish that the termination was because of the Russia investigation.” If Trump’s lawyers could dispute the quotes, they would. Their decision not to do so signals that White House documents substantiate the quotes as published. As evidence of Trump’s corrupt intent, those remarks made directly and privately to the Russian government are far more damning than the Holt interview.

6. The Trump Tower statement

In July 2017, the Times learned that a year earlier, during the presidential campaign, Donald Trump Jr., Jared Kushner, and Trump campaign chairman Paul Manafort had met secretly with Russian emissaries at Trump Tower. When the Times asked Trump Jr. about the meeting, he issued a statement claiming that it was simply about adoptions. Then the Times learned that Trump Jr. had set up the meeting based on an email that literally offered “to provide the Trump campaign with some official documents and information that would incriminate Hillary“ as “part of Russia and its government’s support for Mr. Trump.”

At the time, President Trump’s lawyers repeatedly denied that he played any role in his son’s misleading statement. But in their January letter, they admit that “notes, communications and testimony” show Trump himself “dictated” the statement. This was a cover-up of attempted collusion with the Russian government—and the president orchestrated it.

For more than a year, we’ve awaited answers to big questions in the Russia investigation. Who participated in the Trump Tower cover-up? What happened in the White House after Trump was warned about Flynn? What did Trump tell Comey when they met alone? What did Trump tell the Russians? The letter from Trump’s lawyers, informed by internal documents, reveals what they can dispute and what they can’t. It tells us he’s guilty.