President Donald Trump tried to order prosecutors at the Department of Justice to indict two of his political enemies — 2016 opponent Hillary Clinton and former FBI Director James Comey — this spring, according to the New York Times.
According to the Times report, then-White House counsel Don McGahn warned Trump not to issue the order, and had lawyers prepare a memo for Trump explaining what would happen if he tried to prosecute Clinton and Comey. One of those possibilities was, reportedly, the risk of impeachment.
Presidentially directed indictments against specific individuals would be a massive breach of the independence of the Justice Department; the general expectation that prosecutors are supposed to issue indictments based on an examination of the evidence at hand; and the democratic norm against prosecuting political opponents for political acts.
The president’s lawyers reportedly asked the Justice Department to investigate Comey last year, according to the Times’s Michael S. Schmidt and Maggie Haberman. That request was not successful. And McGahn’s memo appears to have discouraged the president from going further — for now.
But the Times reports Trump has “continued to privately discuss the matter, including the possible appointment of a second special counsel to investigate both Mrs. Clinton and Mr. Comey” — suggesting he hasn’t given up.
Special counsel Robert Mueller was appointed shortly after Comey’s firing to both continue the investigation into Russia ties, and to investigate whether Trump attempted to obstruct justice by interfering into the investigation — including by firing Comey. (McGahn is known to be cooperating with special counsel Robert Mueller, and so has likely told Mueller about Trump’s musings on prosecution orders.)
The Times report suggests that new information could help him argue that the president did, in fact, obstruct justice by attempting to bend it to his will.
Clinton’s sins are reportedly her emails and Uranium One; Comey’s are “leaking” and his treatment of Clinton
Trump promised during the 2016 campaign to appoint a special prosecutor to investigate Clinton based on her use of a private email server as secretary of state — a campaign promise in line with the common Trump rally chant to “Lock her up!” However, when he fired Comey in May 2017, the stated reason (in a memo written by Deputy Attorney General Rod Rosenstein) was that Comey treated Clinton too harshly during the investigation.
Trump didn’t stick to that pretext for long: a few days after Comey’s firing, he said in an interview with NBC News’s Lester Holt that his frustration with Comey was rooted in this “Trump-Russia thing” — the investigation into ties between the Trump campaign and Russia before Trump’s inauguration. And according to the Times, one of the reasons Trump’s lawyers cited in asking the DOJ to investigate Comey after his firing was his handling of the Clinton email investigation, presumably because Trump felt Comey was too soft on Clinton, not too hard.
In addition to the email issue, Trump now believes the Justice Department should prosecute Clinton for her approval of a uranium-mining deal as secretary of state, a long-time conservative bugaboo that has no evidence of criminal activity or intent, and that former Attorney General Jeff Sessions refused to appoint a special counsel to investigate.
Trump’s lawyers’ request to the DOJ to prosecute Comey, meanwhile, were based both in his treatment of Clinton and in his supposed leaking of classified information.
Trump has spread the “leaking” claim around; as far as anyone can tell, it is a lie. It appears to be based on Comey’s recounting of conversations he had with Trump and others before the US Senate in June 2018, and his recording of events as FBI director in contemporaneous memos, some of which were subsequently leaked to the press. But there’s no evidence that Comey engaged in any illegal leaking, and it’s not clear what Trump wants him prosecuted for.
Attempting to prosecute Clinton would be an obvious presidential override of the official finding of an FBI investigation. Attempting to prosecute both Clinton and Comey — the man Trump fired because, ostensibly, he seemed too willing to prosecute her — would be a clear-cut sign that Trump was using the Justice Department for his own ends.