This article first appeared on the Just Security site.
The news that Donald Trump asked the Director of National Intelligence, Daniel Coats, and the director of the National Security Agency, Adm. Michael Rogers, to publicly deny the existence of any evidence of collusion between the Russians and the Trump campaign to influence the presidential election may, or may not, contribute to the overall emerging picture of obstruction of justice by the president.
This revelation underscores several important points about the investigation.
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First, as is so often the case in criminal investigations, the devil is in the details. That is particularly true in this case, because the investigation will likely focus on Trumps intent, that is, whether he corruptly attempted to interfere with or impede the FBI investigation, meaning with an improper purpose.
Assessing intent requires a close examination of direct evidence (like Trumps own statements about his intent), and circumstantial evidence (including Trumps actions and words before, during and after the alleged acts of obstruction).
On the face of it, its not evident that Trumps request to Coats and Rogers to comment publicly on the state of the evidence amounts to obstruction. However, according to the Washington Post article , several officials interpreted Trumps request as an attempt to interfere with the investigation.
(That said, NBC News is reporting from a single source that a former official told NBC News that Coats and Rogers did not believe they were being asked to do something illegal. It was more of a public relations request.)
Determining what Trump intended will require establishing and closely analyzing what precisely he said, and the context of his words. Was he clumsily trying to get information out to the public, or was he trying to put pressure on the FBIs investigation?
Admiral Michael Rogers, commander of U.S. Cyber Command and Director of the National Security Agency, testifies during a House Armed Services Emerging Threats and Capabilities Subcommittee hearing on Capitol Hill in Washington, March 4, 2015. Drew Angerer/Getty
How others understood Trumps words at the time will often be powerful evidence of how they were intended, but not always determinative.
Second, despite the steady revelations over the last two weeks, there may not ultimately be a smoking gun, a single piece of evidence that definitively establishes Trumps intent.
It is more likely that his intent will be discerned from all the available evidence considered together, in this case Trumps alleged request of then-FBI Director James Comey to declare his loyalty, Trumps privately expressed hope to Comey that he find a way to let the Flynn investigation go, Trumps firing of Comey, the false narrative that Trump created about the firing, Trumps statements to the Russians about dismissing Comey and Trumps own public statements about what he did.
This new revelation about Trumps request to Coats and Rogers, once its details are filled in, will need to be assessed along with all these other pieces of evidence.
Perhaps more damning than the Coats and Rogers revelation, the Washington Post story also contained the following alarming disclosure:
In addition to the requests to Coats and Rogers, senior White House officials sounded out top intelligence officials about the possibility of intervening directly with Comey to encourage the FBI to drop its probe of Michael Flynn, Trumps former national security adviser, according to people familiar with the matter. The officials said the White House appeared uncertain about its power to influence the FBI.
Can we ask him to shut down the investigation? Are you able to assist in this matter? one official said of the line of questioning from the White House.
It is difficult to believe that the senior White House officials referenced here were not being encouraged or directed by Trump to find a way to shut down the FBIs investigation. What subordinates said at the time, how they behaved, and what instructions they received from above will also help establish whether Trump committed obstruction of justice.
Third, there will always be some explanation. Following the revelation that Trump told the Russians that Comey was a nut job and that firing him had relieved great pressure on the President, National Security Adviser H.R. McMaster and Secretary of State Rex Tillerson both labored to offer benign (though notably different) explanations for Trumps words.
It would not be the first time in this affair that administration officials have sought to spin (or lie about) the facts. Investigators, and the public, will need to assess these explanations, relying in part on their common sense, to decide whether they are plausible on their face and how they fit (or dont fit) with all the available evidence.
Finally, it is again worth remembering that the question of whether Trump committed obstruction of justice, to a criminal standard, is just one part of the larger inquiry. The question of criminality cannot be the beginning and end of the investigation.
Important also is to ask whether Trump or any administration officials acted unethically; in violation of rules, regulations, or policy; incompetently; or in a manner that could undermine U.S. security or interests.
The story about Trumps request to Coats and Rogers may contribute to the obstruction inquiry, but it raises many of these other questions as well. For example, the Post cites senior intelligence officials who saw the requests as a threat to the independence of U.S. spy agencies.
For this reason, it is essential that the congressional investigations continue to probe these larger questions and to assess whether personnel, policy, or legislative reforms are warranted.
Alex Whiting is a Professor of Practice at Harvard Law School. From 2010-13, he served as the Investigation Coordinator and the Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court.
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Why Did Trump Tell NSA Chiefs to Deny Russian Plot? - Newsweek