Memo to file

If it is true that Donald Trump tried stop an FBI investigation, he's in a hell of a lot of trouble. At this point, we don't know that. The New York Times is reporting that James Comey wrote a memo about it, but the Times doesn't have the memo in question. We don't know if such a memo actually exists. We only have the following:

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.

“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.”

"One of Mr. Comey's associates read parts of it to a Times reporter." That's a pretty thin reed. If you were to read "Curious George Gets a Medal" to a Times reporter, would that prove Curious George was part of the space program?

What's been striking about almost all the reporting about Trump's great sins is how often the reporting is based on anonymous sources, which is almost all the time. The denials of the reporting, as we saw with H. R. McMaster yesterday, is always on the record. Does that matter? Of course. Writing for the Federalist, Mollie Hemingway makes the salient point:

Previous Washington Post stories sourced to anonymous “officials” have fallen apart, including Josh Rogin’s January 26 report claiming that “the State Department’s entire senior management team just resigned” as “part of an ongoing mass exodus of senior Foreign Service officers who don’t want to stick around for the Trump era.”

The story went viral before the truth caught up. As per procedure, the Obama administration had, in coordination with the incoming Trump administration, asked for the resignations of all political appointees. While it would have been traditional to let them stay for a few months, the Trump team let them know that their services wouldn’t be necessary. The entire story was wrong.

So should you be skeptical of the reporting? I won't tell you what you should think, but you should look at the pattern Hemingway establishes in her article.

Back to the Comey memo. Let's assume it actually exists. If the narrative in this case is accurate, and Trump was actually trying to obstruct justice, what was Comey's responsibility? To write a memo to file, or to report the President's actions up through the chain of command? I would argue he'd be required to do both, about which more in a moment. His boss, Attorney General Jeff Sessions, was new in office and there were any number of deputies around who were Obama-era holdovers, so there wouldn't have been any political danger in reporting the actions. From what we know, Comey didn't do that.

Frankly, if Trump was trying to obstruct justice, Comey's responsibility would have been to go public immediately and resign his position. He didn't do that. Beyond that, you can argue that Comey was also guilty of obstructing justice by not reporting the incident at the time it happened. Writing for Fox News, Greg Jarrett, who is an attorney, points out the relevant statute:

Under the law, Comey is required to immediately inform the Department of Justice of any attempt to obstruct justice by any person, even the President of the United States.  Failure to do so would result in criminal charges against Comey.  (18 USC 4 and 28 USC 1361)  He would also, upon sufficient proof, lose his license to practice law.

So, if Comey believed Trump attempted to obstruct justice, did he comply with the law by reporting it to the DOJ?  If not, it calls into question whether the events occurred as the Times reported it. 

You can assume Jarrett is a partisan hack, his reading of the statutory language seems correct to me:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
(June 25, 1948, ch. 645, 62 Stat. 684; Pub. L. 103–322, title XXXIII, § 330016(1)(G), Sept. 13, 1994, 108 Stat. 2147.)

That's 18 USC 4. What does 28 USC 1361 say?

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
(Added Pub. L. 87–748, § 1(a), Oct. 5, 1962, 76 Stat. 744.)

Comey was head of the FBI. He would know the relevant statutory language. Either his mens rea was working properly and he didn't think Trump committed a crime, or he's personally guilty of obstructing justice by not reporting immediately to his superiors what Trump did. I'll bet at least one person in Congress will be asking that question.

One last point -- you might remember that, when Comey was fired, he was in Los Angeles giving a speech and that he found out about his firing because of news reports that were running on television monitors behind him. Most of the commentary I've seen suggested that Trump was just being a jerk by firing Comey that way. Perhaps. I don't think so, however. I suspect the timing was quite intentional. Since Comey was across the country at the time of his firing, he would not have been able to secure his office and dispose of anything that might later be a problem for him. You can safely assume Jeff Sessions now has everything Comey had, including any memoranda he wrote in the immediate aftermath of the incident. Comey knows that, too.

Stay tuned.