A routine Oval Office briefing on counterterrorism took an uncomfortable and highly consequential turn on Feb. 14, when President Donald Trump asked the assembled aides and cabinet members to clear the room so that he could talk to then-FBI Director James Comey alone. When the door closed behind Jared Kushner, the President’s son-in-law and senior adviser and the last person to leave the room, Trump faced Comey and said: “I want to talk about Mike Flynn.” The national security adviser had resigned the previous day, after lying to Vice President Mike Pence and others in the administration about his contacts with Russian officials. Trump then told Comey, who helmed the federal investigation into Russian interference in the 2016 election at the time: “I hope you can let this go.”
That is the account Comey provided last week to the Senate Intelligence Committee, just one part of a mountain of new revelations about his fraught relationship with Trump. Comey’s description of what happened on Valentine’s Day, given under oath and documented in contemporaneous memos that now rest in the hands of a special counsel, is devastating not just for Trump but for several other top figures in his administration. The President, his private attorney and his attorney general have disputed Comey’s version of events in the days since without being completely forthcoming about their own.
Here is what we know about that fateful meeting, which remains under scrutiny by Congress and Robert Mueller, the special counsel overseeing the sprawling federal Russia probe.
He said, he said and documented
Comey’s explosive, detail-rich written testimony, released to the public ahead of his Capitol Hill appearance, says the Valentine’s Day encounter began at a normal briefing attended by the Vice President, deputy director of the CIA, director of the National Counterterrorism Center, secretary of Homeland Security and attorney general. Trump instructed everyone but Comey to leave the room after that briefing, according to Comey’s statement.
“The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President,” Comey recounted, adding that White House Chief of Staff Reince Priebus poked his head in at one point but was waved away by Trump. He went on:
The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.”
In his written statement, Comey said he offered the President no assurance that he would “let this go.” He added under oath before the committee that two officials, Kushner and Attorney General Jeff Sessions, lingered before leaving the room [before what he described as a “very concerning” conversation] and appeared fully aware of the gravity of the situation.
“My sense was the attorney general knew he shouldn’t be leaving which is why he was lingering,” he said. “I don’t know Mr. Kushner well but I think he picked up on the same thing.”
Several Republican senators pressed Comey on the President’s exact wording in the conversation, emphasizing that Trump had said he “hoped” Comey could drop the Flynn investigation. Trump did not “order” or “direct” Comey to do so, they argued.
Comey pointed out that while that interpretation would be semantically correct, the power dynamic between the two men, Trump’s previous demand for a loyalty oath and ultimate decision to fire Comey well ahead of the expiration of his 10-year term as FBI director imbued that “hope” with a different meaning.
“I took it as a direction,” he told Sen. James Risch (R-ID). “It is the President of the United States, with me alone, saying ‘I hope this.’ I took it as, this is what he wants me to do.”
Senators from both parties also pressed Comey on why in the moment, he didn’t tell the President that such a request was highly inappropriate, prompting the 6-foot-8 G-man to admit he wasn’t “Captain Courageous.”
“Maybe if I were stronger I would have [said something],” Comey reflected. “I was so stunned by the conversation that I just took it in.”
A gathering cloud over the White House, courtesy of Mike Flynn
At the time Trump cornered Comey alone, the White House already was engulfed in headlines about Flynn’s Russian contacts as pundits feverishly speculated about why the President waited so long to give his misleading national security adviser the boot.
Major newspapers’ headlines blared about Flynn’s firing and about warnings the Justice Department had offered Trump’s team about Flynn’s repeated contacts with Russian ambassador to the U.S. Sergey Kislyak. The night before the fateful intelligence briefing, as the news of Flynn’s firing was breaking, the Washington Post published a story detailing the alarms that then-acting attorney general Sally Yates had sounded in January about Flynn being vulnerable to blackmail by the Russian government.
The New York Times also first reported on Valentine’s Day that there were direct contacts between Trump campaign associates and Russian officials prior to the election (Comey testified that the article was mostly “not true”).
As Yates would later testify before Congress, she’d informed White House Counsel Don McGahn in late January that Flynn was under FBI investigation and had been interviewed by agents. Flynn was “compromised with respect to the Russians” and McGahn had permission to look at the evidence underlying Flynn’s inappropriate conduct, she said.
White House Press Secretary Sean Spicer later said Trump had been briefed on the DOJ’s concerns about Flynn “immediately” after the first meeting Yates had with McGahn on Jan. 26.
‘I did not say that,’ but ‘there would be nothing wrong if I did’
The White House came out swinging in May when, exactly one week after Trump abruptly fired Comey, the New York Times broke the story that Trump had requested Comey drop the Flynn probe. The administration’s official line was that Trump never asked the former FBI director to stop looking into Flynn.
“While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn,” the administration said in a statement. “The president has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.”
In a briefing the day after the Times story was published, Press Secretary Sean Spicer said: “The President has been very clear that the account that’s been published is not an accurate description of how the event occurred.”
The White House has stuck with this line in the weeks since. After Comey recounted the meeting in painstaking detail and under oath before Congress, the White House and Trump’s outside legal team still said the former FBI director’s account of what happened was flat wrong.
“The President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey ‘let Flynn go,’” Trump’s outside attorney, Mark Kasowitz, said Thursday.
A feisty Trump declined to say Comey lied under oath in a Friday press conference with the president of Romania. But he insisted he did not utter the words Comey said he did.
“There would be nothing wrong if I did say it, according to everybody that I read today, but I did not say that,” Trump said, later adding that he was “100 percent” willing to testify under oath about his conversations with Comey.
The Justice Department, for its part, also pushed back on a new detail in Comey’s testimony: that Sessions did not verbally reply when Comey told him after the Feb. 14 meeting that he was not to be left alone in a room with the President again.
“The Attorney General was not silent; he responded to this comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House,” Sessions spokesman Ian Prior said in a statement.
A spokesperson for Kushner did not respond to TPM’s request for comment about Comey’s testimony.
Political vs. legal consequences
Comey confirmed to Congress that the memo he drafted to document the Valentine’s Day meeting is now in Robert Mueller’s hands, suggesting that the Russia investigation has expanded to encompass Trump’s alleged request about Flynn.
Acting FBI Director Andrew McCabe suggested as much in a separate Senate Intelligence Committee hearing, saying it was “accurate” that the conversation between Trump and Comey was “part of a criminal investigation or likely to become part of a criminal investigation” and thus not something on which he could comment. The scope of Mueller’s investigation explicitly includes any “perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” he may uncover.
Some congressional Democrats have been quick to charge that Trump has committed obstruction of justice here, but legal experts caution that the chances of actually prosecuting the President for that are slim to none.
“The consensus seems to be that a sitting President cannot be indicted,” Robert Ray, who succeeded Ken Starr as independent counsel in the investigation of various Bill Clinton scandals, told TPM. “That’s the stated view of the Office of Legal Counsel. Additionally, the fact remains that the President did not direct or order the former FBI director to end the investigation. His hopes and intimations could be considered an abuse of presidential power, but it would be difficult to prove it carried the intent to constitute an obstruction case.”
“Even if he had directed the FBI director to end investigation,” Ray continued, “that is his prerogative. It’s a policy act, exercising his lawful power under the Constitution. I appreciate that Bob Mueller is going to evaluate the facts. But I don’t believe any responsible prosecutor would bring an obstruction case.”
Ray noted that Mueller’s investigation into the Feb. 14 encounter could provide fodder for an impeachment case, however.
“Even if he concludes no criminal conduct occurred, he could still present Congress a report that documents acts that constitute grounds for impeachment,” he explained, noting that Starr did exactly that prior to Clinton’s impeachment. “Congress can remove him from office for that act.”