President Trump's attorney John Dowd didn't make life any easier for his boss when he indicated in a tweet – using the president's Twitter account – over the weekend that Trump, when he fired Michael Flynn as his national security adviser, was aware that Flynn lied to the FBI regarding is conversation during the presidential transition with Russian Ambassador Sergey Kislyak.
Detractors of the White House have seized on the tweet as evidence Trump obstructed justice when he fired FBI director James Comey. And the critics point to an anonymously sourced Reuters report that said then-acting Attorney General Sally Yates told White House Counsel Don McGahn "that Flynn had told FBI agents the same thing he had told" Vice President Mike Pence.
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But former federal prosecutor Andrew McCarthy argued Monday that Dowd, not Trump, was the source of the tweet, and Yates, in her May testimony before the Senate Judiciary Committee, didn't elaborate on Flynn's interview with the FBI and refused to advise the White House on whether or not to fire Flynn.
McCarthy, former assistant U.S. attorney for the Southern District of New York, said Monday on "The Laura Ingraham Show" that that crucial point "seems to me to have gotten no coverage."
He said it is important that Yates refused to elaborate on the interview, Lifezette reported.
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"So we don't have any reason to believe that Trump had a read on what the FBI's judgment about the Flynn interview was," he said. "And there was some reporting at the time that the FBI had concluded that Flynn had told the truth and to the extent that there may have been any discrepancies, it was because of honest confusion rather than criminality."
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Last week, Flynn pleaded guilty to a felony count of lying to the FBI when he told agents that he and Kislyak had not talked about sanctions against Russia.
CNN justice correspondent Shimon Prokupecz acknowledged Monday it has not been firmly established that Trump knew the FBI concluded Flynn had lied and that Yates "wouldn't specifically get into what was said" during the agents' interview with Flynn.
"But look, there’s still a lot of confusion, because we keep hearing different things about what exactly did the president know," he said.
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Last week, Flynn's guilty plea was interpreted by supporters of the president as evidence investigators had no evidence of Trump collusion with Russia to influence the 2016 election while detractors saw it as an escalation of the probe, with the first Trump senior aide to turn on his former boss.
McCarthy said it is clear that special counsel Robert Mueller has turned his attention to potential obstruction of justice.
He noted Trump's critics have seized on the president's firing of Comey after a one-on-one meeting in which – according to Comey – the president asked the FBI director to back off on the Flynn investigation.
But McCarthy told Ingraham it's difficult to charge obstruction because Trump, as president, has the ultimate authority over the executive branch.
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"Even if we assume that Trump knew that Flynn lied to the FBI, Trump had the right to weigh in on the investigation," he said. "He could have pardoned Flynn, which is the ultimate interference by a president of a criminal investigation. So, I just think they’re making a mountain out of a molehill."
Trump lawyer: president can't obstruct justice
Trump lawyer Dowd told Mike Allen of Axios.com he believes 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."
Dowd insisted the controversial tweet Saturday afternoon did not admit obstruction: "That is an ignorant and arrogant assertion."
Bob Bauer, an NYU law professor and former White House counsel to President Obama, insisted to Allen it is "certainly possible for a president to obstruct justice," arguing the articles of Impeachment drafted against Richard Nixon began by saying he "obstructed, and impeded the administration of justice."
But legal scholar and lifelong Democrat Alan Dershowitz said Trump has the constitutional right as president to fire his FBI director..
"You cannot charge a president with obstruction of justice for exercising his constitutional power to fire Comey and his constitutional authority to tell the Justice Department who to investigate, who not to investigate," Dershowitz said in an interview with "Fox & Friends."
"We have precedents that clearly establish that."
Democratic Sen. Dianne Feinstein, D-Calif., said over the weekend that a Senate investigation into Russia's interference in the 2016 presidential election has revealed possible obstruction.
"I see it in the hyper-frenetic attitude of the White House, the comments every day, the continual tweets. And I see it most importantly in what happened with the firing of Director Comey, and it is my belief that that is directly because he did not agree to ‘lift the cloud’ of the Russia investigation. That's obstruction of justice," Feinstein said on NBC's "Meet the Press."
But Dershowitz insisted that if Congress "were ever to charge him with obstruction of justice for exercising his constitutional authority under Article II, we'd have a constitutional crisis."
He said "clearly illegal acts" on the president’s part would need to be proven.
Dershowitz said Feinstein "simply doesn't know what she's talking about when she says it's obstruction of justice to do what a president is completely authorized to do under the Constitution."
McCarthy said that if Mueller is, indeed, focused on obstruction of justice, it's "fatal flaw as a vehicle for prosecution is the same as it has always been: As president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director."
He points out that Trump continues to deny Comey’s sworn testimony that Trump pressured him to drop the Flynn investigation.
But he said that even if Trump knew Flynn had lied to the FBI and he pressured Comey to close the FBI’s probe, there is still no obstruction case.
"Many analysts are under the misimpression that it is typical for federal prosecutors to accept guilty pleas on minor charges in exchange for cooperation that helps build a case on major charges," McCarthy said.
He said that from this "flawed premise," they reason that Mueller is methodically constructing a major case on Trump by accepting minor guilty pleas from Flynn and from Trump campaign operative George Papadopoulos for making false statements, and by indicting Paul Manafort and an associate on charges that have nothing to do with Trump or the 2016 election.
"That is simply not how it works, strategically or legally," the former prosecutor said.
McCarthy said that if a prosecutor "has an accomplice cooperator who gives the government incriminating information about the major scheme under investigation, he pressures the accomplice to plead guilty to the major scheme, not to an ancillary process crime – and particularly not to false-statements charges."
McCarthy cautioned, however, that while the president may not be prosecuted in a criminal judicial proceeding for exercising his discretion, when executive powers are abused, Congress retains the constitutional authority to impeach and remove the president.
"I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.
Breitbart editor Joel Pollock wrote Monday that White House lawyer Ty Cobb has reiterated his view that Mueller’s investigation is winding down, at least with regard to the White House itself.
Cobb told Jonathan Swan of Axios, despite being wrong about the investigation being over by Thanksgiving, that it would be over by early January.
But Pollock wrote, "Critics, including Breitbart News, have suggested that Cobb is dangerously naïve – especially given the White House’s apparent lack of preparation for Flynn's plea bargain last Friday."
James S. Robbins, who has taught at the National Defense University and the Marine Corps University and served as a special assistant to the secretary of defense in the George W. Bush administration, insisted Flynn "was fully in his rights making the call to Kislyak."
"Despite the best efforts of the anti-Trumpers, it is still not illegal to talk to Russians. Even Democratic former CIA director and Defense secretary Leon Panetta said it was a “stretch” to say these contacts broke the law," he wrote.
"We have come down quite a way from the hyperventilation about Russia 'hacking the election' a year ago," said Robbins. "What happened to Democratic Sen. Mark Warner’s claim, later promoted by Hillary Clinton, that there were 1,000 Russian agents planting anti-Hillary fake news stories in key swing states? Or that Russians had delivered Wisconsin to Trump? All the conspiracy theorists have so far are a few Facebook ads that can’t credibly be shown to have changed even one vote."
FBI's anti-Trump overseer
News also broke over the weekend that for nearly four months, Mueller’s office, the Justice Department and the FBI kept secret the fact that the FBI agent who oversaw the Russia investigation, Lee Strzok, exchanged anti-Trump and pro-Hillary Clinton text messages with an FBI attorney who was also his mistress.
Strzok was one of two FBI agents who interviewed Flynn Jan. 24 at the White House, investigative reporter Sara Carter of Hannity.com found.
The other FBI special agent who interviewed Flynn is described by sources as a field supervisor in the "Russian Squad, at the FBI’s Washington Field Office," according to a former intelligence official with knowledge of the interview.
CNN reported Strzok also led the investigation of Hillary Clinton's private email server as the No. 2 official in the counterintelligence division.
According to electronic records, Strzok changed Comey's earlier draft language describing Clinton's actions as "grossly negligent" to "extremely careless," the source said.
House Intelligence Committee’s Chairman Devin Nunes on Friday criticized the Justice Department and the FBI for not disclosing that Strzok had been removed from the Mueller's probe.
A former U.S. intelligence official told Carter that "with the recent revelation that Strzok was removed from the Special Counsel investigation for making anti-Trump text messages it seems likely that the accuracy and veracity of the 302 of Flynn’s interview as a whole should be reviewed and called into question."
"The most logical thing to happen would be to call the other FBI Special Agent present during Flynn’s interview before the Grand Jury to recount his version," the former intelligence official added.
Trump: What about Hillary's lies to FBI?
Speaking briefly to reporters before departing for Utah Monday morning, Trump was asked about Flynn lying to the FBI.
"I feel badly for General Flynn," he said. "He's led a very strong life."
Trump then turned attention to his 2016 election foe.
"I will say this. Hillary Clinton lied many times to the FBI. And nothing happened to her. Flynn lied and they destroyed his life. I think it's a shame. Hillary Clinton on 4th of July weekend went to the FBI, not under oath, it was the most incredible thing anyone’s ever seen. She lied many times. Nothing happened to her. Flynn lied and it’s like they ruined his life. It’s very unfair."
The Daily Caller noted the Washington Post Fact Checker column examined Clinton's claim that the FBI director said her declarations regarding her handling of classified information through a private email server were "truthful" and found the claim to be false, giving her four "Pinocchios."
Clinton is on record saying: "I did not email any classified material to anyone on my email. There is no classified materials. I am confident that I never sent nor received any information that was classified at the time. I had not sent classified material nor received anything marked classified."
But Comey, although he declined to refer prosecution, acknowledged later to Rep. Trey Gowdy, R-S.C., chairman of the House Select Committee on Benghazi, that Clinton repeatedly lied.
GOWDY: Secretary Clinton said there was nothing marked classified on her emails either sent or received. Was that true?
COMEY: That’s not true.
GOWDY: Secretary Clinton said, "I did not email any classified material to anyone on my email. There is no classified material." Was that true?
COMEY: There was classified material emailed.
The Washington Post concluded: "Clinton is cherry-picking statements by Comey to preserve her narrative about the unusual setup of a private email server. This allows her to skate past the more disturbing findings of the FBI investigation."
The notes of Clinton's July 2 interview released by the FBI show Clinton made statements that appear to either contradict her earlier remarks about the email scandal or to be flat-out lies, the Federalist pointed out.
For example, Clinton has repeatedly said she has turned over all of her work-related emails on her private server, but the FBI report stated it found 17,448 emails she failed to turn over to the Inspector General.
Clinton also told the FBI she didn't understand that an email containing a "(C)" meant "confidential," thinking it was simply an indicator of alphabetical order. Regardless of whether she was telling the truth, she violated an agreement she signed during her first day on the job in the State Department stating it was her responsibility to ascertain whether documents contained sensitive information. By signing the agreement, she also acknowledged the criminal penalties she would face if she disclosed government secrets.
In 2011, State Department employees received a memo sent on Clinton’s behalf warning them against using personal email accounts for official business because it could put sensitive information at risk. She told the FBI she didn't remember sending the memo.