Trump's Tape Blunder Risks Fresh Legal Jeopardy in Russia Probe

  • President says tweet on tapes kept former FBI director honest
  • Threat of tapes may be seen as attempt to intimidate Comey

Trump Said to Not Have Recordings of Comey Conversations

President Donald Trump’s admission that he never taped his conversations with ousted FBI Director James Comey risks exposing him to fresh legal jeopardy and weakens his credibility in the eyes of investigators probing ties between his associates and Russia. 

With a tweet Thursday, Trump ended more than a month of suspense about whether he had, in fact, recorded his interactions with the FBI chief he fired on May 9, declaring that “I did not make, and do not have, any such recordings.” 

Trump explained his actions in a Fox News interview that aired Friday by saying that his reference to the possible existence of tapes in a tweet may have caused Comey to alter his recounting of what happened.

“When he found out that I -- you know, that there may be tapes out there, whether it’s governmental tapes or anything else and who knows, I think his story may have changed,” Trump said. “Then he has to tell what actually took place at the events.”

That explanation is likely to do little to end the controversy. Lawyers with experience in similar cases say his behavior may be important to special counsel Robert Mueller’s Russia probe, which is now exploring the possibility that Trump sought to obstruct justice. 

‘Don’t Say Anything’

The tweets targeting Comey “could be relevant” to an obstruction investigation, even if the tapes don’t actually exist, said Julie O’Sullivan, a former federal prosecutor who worked on the team investigating Bill and Hillary Clinton during the Whitewater inquiry. 

“It’s basically trying to tell Comey, ‘Don’t say anything,”’ said O’Sullivan, now a law professor at Georgetown University.

Trump has insisted there was no collusion between his campaign and Russian government officials who sought to manipulate the outcome of the 2016 election, and he has scoffed at the suggestion he’s interfered in an investigation he regularly dismisses as a “witch hunt.” But his interactions with Comey have done him no legal favors, lawyers say, raising the prospect that his undoing may be his tampering in an investigation rather than the suspicions that led to the probe.

Trump has refused to rein in his public statements. In the Fox News interview, Trump said his own story never changed and “was always the truth.” When a Fox host credited him for his May 12 tweet about tapes as a smart way to ensure Comey’s honesty, Trump agreed: “Well, it wasn’t very stupid.”

Russia Probe

“He did admit that what I said was right and if you look further back before he heard about that, I think maybe he wasn’t admitting that, so you’ll have to do a little investigative reporting to determine that, but I don’t think it’ll be that hard,” Trump said.

Trump may have been referring to Comey confirming that he told Trump he wasn’t personally under investigation. But Comey also testified to Congress that Trump demanded his loyalty and urged him to drop an investigation of ousted national security adviser Michael Flynn. Trump has denied those assertions.

Trump also struck at Mueller’s own credibility, suggesting the special counsel might favor Comey because of their longstanding ties.

Mueller is “very, very good friends” with Comey, “which is very bothersome,” Trump said. Trump also complained about Mueller’s hiring of staff, some of whom supported Hillary Clinton’s presidential campaign.

Mueller “is an honorable man and hopefully he’ll come up with an honorable solution” to those issues, Trump said.

Examining Motive

Trump in the Fox Interview reiterated that he didn’t tape the conversations he had with Comey and doesn’t have any tapes. But he has raised the specter that there may have been other U.S. government surveillance.

“With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are ‘tapes’ or recordings of my conversations with James Comey,” Trump said on Twitter on Thursday.

His suggestion that he was suspicious someone may have been eavesdropping on the conversation is at odds with Comey’s testimony that the president requested others in the Oval Office leave before he asked the FBI director to drop an investigation of Flynn. Trump’s version doesn’t explain why he wouldn’t have wanted Attorney General Jeff Sessions or son-in-law Jared Kushner as witnesses to the conversation.

Investigators will examine what Trump had to gain by implying after he fired Comey that he had a recording of the conversation, said Jim Robenalt, a Cleveland-based lawyer and presidential historian. Robenalt lectures nationally with John Dean, the former White House counsel whose testimony helped bring down President Richard Nixon, and teaches a continuing legal education class on Watergate.

“You’ve got to ask the question: Why is somebody threatening tapes other than to try to intimidate somebody? And then the fact that they said they don’t have tapes, to me, as a lawyer, raises a huge red flag,” Robenalt said. “Did some tapes exist that were harmful that have been destroyed? Why would somebody threaten tapes that don’t exist?”

Credibility Undercut

Representative Adam Schiff of California, the senior Democrat on the House Intelligence Committee, said the White House must still respond in writing to the panel’s request for any tapes, which carried a June 23 deadline.

“While I would certainly hope that the President’s most recent statement is true, we will continue to pursue the matter with other witnesses so that the public can be assured that if recordings were ever made, they will be preserved and be made available to the committee and ultimately to the public, as well,” he said in a statement.

A core tension in any inquiry will be Comey’s honesty and credibility versus Trump’s. The president’s earlier suggestion that he had tapes that he now says never existed undercuts him, Robenalt said.

Comey, on the other hand, wrote detailed memos immediately after his conversations with Trump and distributed them to associates. He also told trusted people about his concerns soon afterward, well before Trump fired him.

The former FBI director’s memos on the interactions “are going to be very important to any fact-finder. That kind of note-taking is highly credible,” Robenalt said.

‘Keep Comey Honest’

Still, Ronald Rotunda, a Chapman University law professor who was assistant majority counsel on the Watergate committee, said there is nothing inherently wrong with Trump using the possibility of tapes as a ruse. It’s entirely plausible that “Trump intimated there might be tapes in order to keep Comey honest,” Rotunda said.

White House spokeswoman Sarah Sanders declined to elaborate on Trump’s tweets in a briefing with reporters afterward. “The president’s statement via Twitter today is extremely clear,” she said. “I don’t have anything to add.”

Trump had faced a Friday deadline to answer a request from Schiff’s panel for information on whether recordings of Comey’s conversations with Trump exist and, if they do, for copies of the tapes.

According to one person familiar with the matter, who spoke on condition of anonymity, Trump raised the possibility of tapes as a strategy to ensure that Comey told the truth, even though Trump now is suggesting that did so because he couldn’t be sure there were no recordings made by others.

“James Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” Trump wrote on May 12. He concluded with a tweet calling the investigation into Russian interference in the election and his campaign’s possible involvement a “witch hunt,” asking, “when does it end?”

Comey told a congressional panel that it was Trump’s tweet suggesting the president made recordings of their conversations that spurred him to orchestrate leaks about his memos that documented the encounters. 

The day after the description of one memo was published by the New York Times on May 16, Deputy Attorney General Rod Rosenstein appointed Mueller as a special counsel to investigate Russian meddling in the 2016 presidential election, including potential collusion with Trump associates.

— With assistance by Billy House, Jennifer Epstein, Shannon Pettypiece, Kathleen Hunter, Arit John, and Elizabeth Titus

    Before it's here, it's on the Bloomberg Terminal.