The Comey Obstruction Memo And Trump’s Mens Rea (Update)

To read the New York Times, there is no question but that the story is totally, completely, absolutely, irrefutably true.

“I hope you can let this go.”

Those are President Trump’s words, according to the former F.B.I. director, James Comey…

No “allegedly.” No caveat of the details buried in the original story.

Mr. Comey shared the existence of the memo with senior F.B.I. officials and close associates. The New York Times has not viewed a copy of the memo, which is unclassified, but one of Mr. Comey’s associates read parts of it to a Times reporter.

And yet, media start screaming from the rooftops that this happened, that this is fact. And it may very well be fact. Or perhaps mostly accurate. Or not at all, since at this point Jim Comey has yet to confirm its truthfulness and no one has seen this memo. Yet, as the New York Times informs us, “those are the president’s words, according to…Comey.”

“I hope you can see your way clear to letting this go, to letting Flynn go,” Mr. Trump told Mr. Comey, according to the memo. “He is a good guy. I hope you can let this go.”

That Comey would write a contemporaneous memo is hardly surprising. Many of us do that as a matter of routine practice, make notes of conversations, whether in person or by phone, of matters that may prove important later on. We want to memorialize the words, time and date, because we may need to rely on them in the future. You can’t remember everything, and it’s easy to just write it down at the time so that it’s there later, when you need it. No big deal.

Except the media didn’t hestitate to gasp for air before spreading the “breaking” news everywhere that this was 100% true, real, fact, even though it’s merely double hearsay at the moment. Not only was it promoted everywhere as true, but the next steps were almost immediately taken; what does it mean?

At Lawfare, they launched into an explanation of obstruction of justice with this proviso.

It is important to remember that the Times story contains only snippets of the reported Comey memo, so the analysis below is thus necessarily preliminary, based on the limited facts we have access to at this point. Much remains unknown and the specific facts that will emerge in the days to come matter a great deal.

The only fact they have is that the Times reported it, since nothing the Times reported is yet fact. While the snippets reported are certainly limited, it’s not merely a problem because they’re just snippets, but because they’re merely double hearsay reported snippets, as in there are no underlying facts whatsoever as yet. Just a story.

Under 18 U.S.C. § 1505, a felony offense is committed by anyone who “corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation in being had by either House, or any committee of either House or any joint committee of the Congress.”

The key word is “corruptly,” since we’re glossing over whether the discussion occurred at all, taking the story for granted.

18 U.S.C. § 1515(b), defines “corruptly” as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information”

The question, since we’re way past the assumption that it happened, is whether Trump was acting with an “improper purpose,” the mens rea element. For those who believe that every breath taken by Trump is with improper purpose, this isn’t a question. For purposes of legal analysis, however, it’s hardly so simple.

The White House issued a pool press release denying the conversation wherein Trump uttered the quoted words happened. The media, if it mentions this at all, dismisses it out of hand. What else would you expect of Trump? What else would you expect of the media?

There can be no indictment of the president for obstruction of justice, as he’s immune from prosecution during his term of office, but obstruction would serve as a basis for impeachment, as it has before with Nixon and Clinton

In addition to this story, there are the dots surrounding Trump, Comey and the two together that can be connected to construct a plausible, if not definitive, case against the president for obstruction of justice. Whether these dots, such as the loyalty oath Trump allegedly demanded of Comey, was fact, or as truthful as the media has reported it to be, remains another underlying question that has yet to be proven by facts, and yet widely assumed to be true. It’s part of the myth, and questioning the myth is akin to denying there is a god. Heresy will not be tolerated.

In response to these connected dots, the theory of obstruction, there are defenses to be offered even if there is a Comey memo, it says what it’s reported to say, and Comey is willing to testify to the same. Was it a plea for mercy by the president for a man who served his nation? Was it a plea for calm in a political storm that threatened to overcome the ability of a government to function?

These may seem close to the mens rea required, but nuance is critical when distinguishing between corrupt purpose and lawful, even if misguided, purpose. There aren’t many willing to argue that Trump doesn’t have his “misguided” moments. Even when you attribute the worst to every move Trump makes, that does not prove that his intent was improper from his perspective.

But just as Axios is busy twitting its little butt off about Comey’s revenge, there remains the problem that the media, as a whole, has gotten way ahead of itself and leaped over that one vital detail: there is no direct evidence of any sort showing that any of this is true. Yet.

 Update: Surprisingly (if not shockingly), The Hill takes a step away from the edge and into reality:

However, if this is food for obstruction of justice, it is still an awfully thin soup. Some commentators seem to be alleging criminal conduct in office or calling for impeachment before Trump completed the words of his inaugural oath of office. Not surprising, within minutes of the New York Times report, the response was a chorus of breathless “gotcha” announcements. But this memo is neither the Pentagon Papers nor the Watergate tapes. Indeed, it raises as many questions for Comey as it does Trump in terms of the alleged underlying conduct.

After running through their questions, it concludes:

For all of these reasons, we need to move beyond the hyperventilated pronouncements of criminal conduct or impeachable offenses based on this memo. This conversation in the Oval Office is a valid matter of concern and worthy of further investigation. It is not proof of an impeachable offense any more than it is proof of a crime.

Notably, they still take for granted that the conversation happened, that it’s a fact, when we have yet to reach that point. But at least it suggests that scrutiny is in order before we burn the witch, which is better than what the rest of the media has done.

23 thoughts on “The Comey Obstruction Memo And Trump’s Mens Rea (Update)

  1. Ryan

    “An F.B.I. agent’s contemporaneous notes are widely held up in court as credible evidence of conversations.” Is that so? Maybe I’m missing the hearsay exception.

    1. SHG Post author

      That’s utter nonsense, obviously. While there are certain hearsay exceptions that might apply, the Times folks just blew some cred on that completely false statement.

      1. ryan

        the quote is from the Times piece actually. But yea I wasn’t aware of the fbi officer contemporaneous note exception to hearsay. In my state law enforcement notes are categorically barred from admission in evidence by statute.

          1. AE

            The record comes in under 803(6), record of regularly conducted activity, and assuming the action is against Trump or one of his conspirators, Trump’s statements come in as opposing party statements under 801(d)(2). Alternatively Trump’s statements can come in not for the truth, but for their affect on the listener — Comey — as to what he believed Trump wanted him to do or not do with regard to Flynn.

            Lastly, I don’t find it outlandish to assert that the court and the jury will take Comey’s notes to be authoritative as to what actually transpired especially considering the notes were made contemporaneously and prior to his firing.

            1. SHG Post author

              Business record exception? You can’t be serious. Nor 801(d)(2), as he didn’t sign it, it wasn’t under oath and best evidence rule. And if background, then it can’t be used to prove the truth of the matter (not even the res gestae sinkhole saves this one). That’s the sort of ridiculous arguments a prosecutor makes to try to circumvent a complete evidentiary failure.

            2. AE

              Can’t seem to reply directly to your comment below, but here goes: I don’t know why the business records exception would not apply here if Comey testifies that he regularly recorded important conversations like this one. Am I missing something important here?

              Also, non-custodial statements by party opponents given to law enforcement are admitted in federal courts all the time. I don’t see why Trump’s statements to Comey would be any different. Even if the letter itself does not come in, Comey can testify as to what Trump said to him and use the letter to refresh his recollection if need be. Even if not evidence per se, its very useful in conjunction with Comey’s testimony.

              Lastly, I have seen courts allow far worse with regard to statements being being offered only for their affect on a listener. Obstruction is all about how Comey understood Trump’s words, not whether Flynn is in fact a good guy or not. If Comey thought, and the jury agrees, that Trump saying Flynn is a good guy was ‘code’ for drop the investigation we have obstruction.

            3. SHG Post author

              I’m going to post this even though it’s nonsense as a matter of courtesy. The lawyers here will understand what’s wrong with each of your arguments. The non-lawyers will just have to punt. The amount of my time unexplaining every insanely wrong legal argument is more than I care to give.

              And yes, if Comey can’t remember, then it can be used to refresh his recollection, which is not evidence. That’s an entirely different matter. The rest is just wrong.

      2. Joseph

        If Comey summarized for himself the contents of the meeting after it happened in a note, can it not be admitted under 803(5) as a recorded recollection? A layman’s (no doubt flawed) reading makes it seem as though the three prongs are satisfied.

        Also, while it’s not relevant to whether or not such notes are “widely held up in court” and the accuracy of the Lawfare article, various sources have led me to believe that Senate impeachment hearings are not necessarily bound by the same rules that court proceedings are.

        1. SHG Post author

          It’s admissible as a hearsay exception only if the witness testified that he can no longer remember. [See 803(5)(a)] As for Senate impeachment proceedings, they don’t rely on the rules of evidence, so that’s entirely different.



    The important story is not that Comey wrote “a cover your ass” memo or even that Trump is literally Hitler. On the contrary, the story with overarching significance deals with the breach of trust engaged in by the FBI types who leaked parts of the memo to the New York Times.

    Perhaps I am naive, but I expected probity from the FBI and that is particularly so even the face of the Comey firing. If senior FBI types don’t understand that the ends do not justify the means, we are all really fucked. I am not exaggerating.

    All the best.


    1. SHG Post author

      Excellent point, Judge, assuming that a senior FBI official in fact leaked something to the Times. While many applaud the action because they favor its revelation, the idea that such a person would reveal internal information undermines all expected probity, regardless of anything else.

  3. Sacho

    Of the last 20 “Editorial Board” posts on the NYTimes opinion pages:

    – 6 have Trump in the name
    – 4 more are concerned with Trump’s actions(including the absolutely childish The Republican’s Guide to Presidential Behavior)
    – 1 is about “echoes of the KKK”
    – 1 is about “Nazis”
    – 1 is dreaming of an equity utopia(“Confronting Segregation in New York City Schools”) that will never exist

    There’s also one about workers. You know, just in case any of those plebs read the newspaper.

  4. phv3773

    Its not the memo in and of itself. It’s the memo plus the reasonable belief that Comey will say the same thing under oath should that be appropriate.

    1. SHG Post author

      Or, Comey’s testimony regardless of the memo, as a lawyer might think of it, assuming that is his testimony and there is a memo, and the memo says what the Times says it says, and was actually written by Comey, etc. Why are you people so stuck on this memo? If it exists, it’s nothing more than Comey’s memorialization of what he remembers was said. That’s it.

  5. Jeff Norman

    Hi, I’m a sexy non-lawyer with no argument, but I do have a question: Doesn’t the AG and/or president generally have the authority to give orders or at least make recommendations to the FBI director? If so, how should we distinguish exercising that authority from obstructing justice?

  6. Steven

    I have looked at the Rule 803, Exceptions to the hearsay rule. As a private citizen I would hope that such uncorroborated notes would not be acceptible as evidence. In fact, law enforcement should have a greater standard. In the private sector, meeting notes are distributed and corroborated in that way. One can execute contractual commitments based on such a memo. Because of the Director’s role, he should have clarified any boundaries that may have been crossed. Then he should have written a general memo regarding what is or is not appropriate and recommend legal counsel regarding such comments. I just cannot see how valuable these memos can be if they are not corroborated.

    1. SHG Post author

      Corroboration might be nice, but has nothing to do with the limited admissibility of the notes under the hearsay rule, not could it. This is about Comey’s recollections, nothing more. It’s impossible to corroborate something when there are no other witnesses to the communications. That doesn’t mean the communications didn’t happen or can’t be proved, but that the notes are only admissible a substitute for Comey’s recollection if he is incapable of testifying directly because of his memory lapse.

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