If a post-inauguration dinner between President Donald Trump and then-FBI director James Comey unfolded the way the President claims it did, then he’s got some big problems on his hands, former Justice Department officials and FBI agents say.
In a bombshell interview on Thursday night with NBC’s Lester Holt, Trump claimed he had received three separate assurances from the now-ousted Comey that he was not personally under investigation for collusion with the Russian government.
“I actually asked him, yes,” Trump told Holt. “I said, “If it’s possible would you let me know, am I under investigation? He said ‘you are not under investigation.’”
“He said it once at dinner and then he said it twice during phone calls,” Trump added.
According to the New York Times, that unusual private dinner in January also involved Trump demanding a pledge of loyalty from Comey, who instead promised to remain honest. Trump not only fired Comey, but appeared to issue a public threat Friday morning to release “tapes” of their conversation if Comey were to speak to the press.
While many details remain unverified, several former DOJ officials and FBI agents told TPM that if Trump asked Comey if he were under investigation, it would be a serious violation of protocol.
“It’s improper,” a former high-level Justice Department official said. “It gives both appearance of impropriety, which can cause the investigation’s reputation to be damaged irretrievably, and it’s an invitation to share information that’s grand jury-protected.”
A federal grand jury currently looking at the Trump campaign’s ties to Russian officials reportedly issued its first subpoenas this week to associates of ousted national security adviser Michael Flynn. The former DOJ official noted that anything related to that case, including its scope and which individuals are or are not under investigation, would be legally protected information.
“Under no circumstances could anybody in the White House, including the President, ask about whether he or any of his associates are under investigation,” the official said. “That’s kindergarten stuff.”
The official, who shared his views candidly on condition of anonymity, said that during his decades in federal law enforcement the only President investigated by his own government was Bill Clinton.
“And I don’t recall any situation with Bill Clinton ever asking what his status was,” the official said. “It may have happened behind the scenes, but I don’t ever recall hearing about it. This is truly untrod ground.”
At a press briefing Thursday, White House spokesperson Sarah Huckabee Sanders brushed off such concerns, telling reporters “I don’t see it as a conflict of interest.”
“We’ve talked to several—again, several—legal scholars have weighed in on this and said that there was nothing wrong with the President asking that question,” Sanders said.
Nancy Savage, the executive director of the Society of Former Special Agents of the FBI, disagreed.
“It would be a conflict of interest,” she said. “If someone is at all involved in an investigation, even as a witness, or in some other role, nobody in the FBI should be briefing them about the case. That just wouldn’t be done.”
The former Justice Department attorneys and FBI agents that TPM spoke with all expressed concern that the mere suggestion Trump asked Comey about the investigation could wreak havoc going forward.
“If any future prosecution is brought in the Russia investigation, those statements could be used against the government. It could be very problematic,” said Michael German, a former FBI special agent. “I mean, agents go to jail for communicating details of investigations with subjects of investigations.”
German added that the news could be “very disheartening” to the FBI investigators who are currently working on the Russia case.
“It sends the message that it doesn’t matter what you find, because the White House sees this case as not anything for the President to worry about.”
Other former FBI agents, including former special agent Jeffrey Ringel, echoed the confidence of FBI Acting Director Andrew McCabe that the bureau will relentlessly pursue the investigation regardless of outside press.
“The team of investigators doing the in-the-trenches work, they will follow the leads until they get to the truth,” Ringel told TPM. “They will not be influenced by the President saying, ‘I’m not under investigation’ or ‘Don’t be bothered with this, there’s nothing there.'”
Several former FBI agents and DOJ attorneys noted that if Trump and Comey did discuss the investigation, there are far more concrete rules on the books governing Comey’s behavior, while the White House is controlled more by accepted norms and precedents.
“Justice Department policies prohibit agents from discussing any investigation with anyone outside the DOJ, absent some need to question a witness or gather information,” explained German. “Those policies were designed to protect the FBI against improper attempts to put political pressure on particular pending investigations. They were an outgrowth of the Watergate era and the recognition that we don’t want politics to seep into law enforcement decisions.”
Besides those blanket restrictions, German noted, there are special rules for FBI contact with the White House. A 2009 memo drafted by former Attorney General Eric Holder dictates that only the attorney general and the deputy attorney general can communicate with the White House. The FBI director is not supposed to do so absent some special circumstance, such a national security emergency.
Peter Zeidenberg, who worked in the U.S. Department of Justice Public Integrity Section and served as the Assistant U.S. Attorney for the District of Columbia, said Comey telling Trump he was not under investigation would be “totally inappropriate.”
“It’s his campaign that is being investigated. And from what we know about the investigation, he is the beneficiary of the Russian interference,” Zeidenberg said, referring to Trump. “Until they complete everything, how could you know he wasn’t part of a conspiracy? I’m not saying he is, because there’s no publicly available evidence. But that’s what they’re looking for—these connections. Trump would certainly be considered the subject of this investigation at the outset. Comey, even if he were inclined to, couldn’t say: ‘You’re cleared.'”
For that reason, Zeidenberg and other former DOJ officials said they’re confident the alleged conversation never took place—outside of Trump’s imagination.
“In what universe are we supposed to think that really happened?” Zeidenberg said. “I don’t think Comey would even take a call like that, and he would never have such a conversation with a possible subject without witnesses present.”
Trump, of course, has a track record of hearing what he wants to hear.
After a meeting earlier this year with the top Democrat on the House Oversight Committee, Rep. Elijah Cummings (D-MD), Trump announced that Cummings had called him “one of the great Presidents in the history of our country.”
Cummings quickly clarified: “I have said repeatedly that he could be a great President if … if … he takes steps to truly represent all Americans rather than continuing on the divisive and harmful path he is currently on.”
Whether Trump similarly came away from his conversation with Comey with an apparent misunderstanding—simply hearing what he wanted to hear in terms of not being under investigation—could be determined if the “tapes” the President threatened to release ever materialize.