President Donald Trump’s statement that he discussed the FBI’s Russia investigation with former Director James Comey has raised red flags among legal experts who said such conversations would be improper.
“There generally shouldn’t be communications about pending investigations and if you need an explanation why, see: Watergate, basically,” said Kathleen Clark, an ethics expert at Washington University’s School of Law.
Former federal prosecutors and government ethics experts said the president and FBI director should never discuss pending investigations, at least in the way Trump described it in an exclusive interview Thursday with NBC News' Lester Holt.
While there are many unanswered questions about what actually transpired between Trump and Comey, experts said the alleged conversations raise the issue of potential intimidation and conflicts of interest that those very rules are designed to prevent.
“There should be a structural respect between the Department of Justice and the White House and a measure of propriety so that nobody ever has the conversation we’re seeing,” said Michael Wildes, a former federal prosecutor.
Trump told NBC News that Comey had told the president on three occasions that he was not under investigation as part of the agency’s probe into Russian meddling in last year’s presidential election.
“I actually asked him,” Trump told Holt in the White House interview two days after firing Comey. “I said, if it's possible would you let me know am I under investigation? He said, 'You are not under investigation.'”
Trump added, “He wanted to have dinner because he wanted to stay on...he wanted to stay on as the FBI head. And I said I'll, you know, consider and we'll see what happens. And at that time he told me you are not under investigation.”
At a press briefing Thursday, White House spokesperson Sarah Huckabee Sanders dismissed concerns about the conversations. “I don’t see it as a conflict of interest,” she said. “We’ve talked to several — again, several — legal scholars have weighed in on this and said that there was nothing wrong with the president asking that question.”
Wildes, who went to be elected mayor of Englewood, New Jersey, after leaving the U.S. Attorney's office in the Eastern District of New York, said he’s been on both sides.
“When issues would come up, there was a legal and an ethical imperative that restrained me from asking certain questions,” he said of his time as mayor. “I wanted the process and people I represented to be assured of the legitimacy of the investigations.”
Communication between the Department of Justice and elected officials or White House aides about pending investigations are generally prohibited, except in certain circumstances and between only a small number of officials.
A 2009 directive issued by then-Attorney General Eric Holder states that just two people inside DOJ — the Attorney General and the Deputy Attorney General, not the FBI Director — are permitted to communicate with the White House, unless special permission is given.
Clark was troubled by Trump’s assertion that one of his exchanges with Comey occurred over a dinner in which Comey’s job was seemingly on the line.
“Trump seems to be drawing a connection between Comey assuring Trump he wasn’t under investigation and Comey wanting to stay on,” she said.
Matthew Miller, a former Department of Justice spokesperson under President Barack Obama, agreed, saying, “Even if you don’t link that as a specific quid pro quo, it’s completely inappropriate to have that conversation.”
Stephen GIllers, an ethics expert at the New York University Law School, said that if Trump is quoting Comey directly and accurately, it would be “inaccurate and improper.”
“The Russia investigation had and probably still has a long way to go. Neither Comey nor anyone else could or can now know where it may yet lead. Comey could not have said anything to imply exoneration of Trump,” Gillers said in an email.
“So at most Comey can only have said — if he said anything — that the ongoing investigation has to date produced no evidence implicating Trump in a crime. That would be a remarkable thing to say once, let alone on two additional occasions.
"Prosecutors do not provide progress reports on an investigation to persons who want to know where they stand, and Comey is not even a prosecutor,” Gillers added.
Indeed, many experts doubted that Trump is accurately relaying his conversations with Comey.
Joyce Vance, a former federal prosecutor, said she find it impossible to believe Comey would have been so definitive in clearing Trump, not only because of the DOJ’s guidelines, but because doing so could complicate potential prosecution in the future.
“It seems so improbable that these questions would have been asked and answered the way he indicated. Because if there was any risk of tainting evidence or foreclosing answers down the road” Comey would not have done it, she said.
Trump himself has raised similar concerns when it involved political opponents.
When Bill Clinton hopped on board then-Attorney General Loretta Lynch’s plane when they both happened to be on the same tarmac, Trump called it “terrible” and “bad judgement” and “one of the biggest stories of this week, of this month, of this year.”
Regardless of the actual conversations, Trump has created an appearance of a conflict of an interest by discussing it, said Noah Bookbinder, a former top aide to the Senate Judiciary Committee who now runs Citizens for Responsibility and Ethics in Washington, a liberal ethics watchdog group.
“There’s definitely an appearance problem of a president asking a law enforcement official about an ongoing investigation that could deal with him or people around him. It certainly looks like potential interference and it’s just something that shouldn’t be happening,” Bookbinder said.
So why would Trump discuss it then?
Bookbinder guessed that in Trump’s rush to try to exonerate himself, “It seems like he’s either oblivious to the appearance issues or doesn’t care.”