< What Could Be Coming Next In Robert Mueller's Russia Investigation

ARI SHAPIRO, HOST:

Special counsel Robert Mueller is investigating several threads. The recent indictments of Russian businesses and individuals who tried to influence the 2016 election is just one of them. Another is this. What happened after President Donald Trump was elected? It's about obstruction of justice - any attempt to impede or hinder an investigation with what's known as corrupt intent. The idea is that President Trump has allegedly tried to thwart the Russia investigation.

For the podcast Embedded, host Kelly McEvers and NPR justice correspondent Carrie Johnson take a look back at the relationship between Trump and former FBI Director James Comey, interactions that some legal scholars say could now be part of the growing evidence for possible obstruction.

KELLY MCEVERS, BYLINE: One of the first major interactions between Trump and Comey is in February 2017. The president's national security adviser, Michael Flynn, has just been fired for lying about a conversation he had with the Russian ambassador to the U.S. And Trump knows Flynn has been interviewed by the FBI. Carrie Johnson picks up what happens next at this February meeting. And you will hear testimony Comey later gave before a Senate subcommittee.

CARRIE JOHNSON, BYLINE: FBI Director Jim Comey is at the White House for a big briefing on counterterrorism.

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JOHNSON: Whole bunch of people are there - the president of the United States, Vice President Mike Pence, presidential aide and son-in-law Jared Kushner, Attorney General Jeff Sessions and others. This meeting breaks up, and the president's signals to Comey that he wants to talk to Comey alone.

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JAMES COMEY: My impression was something big is about to happen. I need to remember every single word that is spoken.

JOHNSON: And Attorney General Sessions, by Comey's account, and Jared Kushner kind of linger for a while at the table.

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COMEY: My sense was the attorney general knew he shouldn't be leaving, which is why he was lingering. And I don't know Mr. Kushner well, but I think he picked up on the same thing.

JOHNSON: They knew maybe he shouldn't be meeting alone with the president, but they didn't wind up doing much about it.

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COMEY: And so I knew something was about to happen that I needed to pay very close attention to.

JOHNSON: The president ushers them out, clears the room, talks to Comey alone and says...

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JAMES RISCH: Quote - this is the president speaking - "I hope..."

MCEVERS: This is Republican Senator James Risch reading from Comey's own notes.

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RISCH: "I hope you can see your way clear to letting this go - to letting Flynn go."

JOHNSON: I hope you can see your way clear to letting this go - to letting Flynn go. He's a good guy.

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RISCH: "He is a good guy."

JOHNSON: I hope you can let this go.

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RISCH: "I hope you can let this go."

JOHNSON: Comey understands this to mean a request from the president of the United States to the FBI director to back off the Flynn investigation.

MCEVERS: Some say this could be part of the evidence for possible obstruction. Republicans at this Senate hearing do not think this was a request from the president of the United States to, quote, "back off" the investigation. And here's some more from that hearing.

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RISCH: You may have taken it as a direction, but that's not what he said.

COMEY: Correct. I - that's why...

RISCH: He said, I hope.

COMEY: Those were his exact words, correct.

RISCH: OK. You don't know of anyone that's ever been charged for hoping something. Is that a fair statement?

COMEY: I don't as I sit here.

RISCH: You don't. Thank you. Thank you.

JAMES LANKFORD: The key aspect here is if this seems to be something the president's trying to get you to drop it, this seems like a pretty light touch to drop it, to bring it up at that moment the day after he had just fired Flynn, to come back in and say, I hope we can let this go. But then it never reappears again. Did it slow down your investigation or any investigation that may or may not be occurring with Michael Flynn?

COMEY: No, although I don't know there are any men...

MCEVERS: That was Republican Senator James Lankford. And we asked him about this line of questioning later.

LANKFORD: For someone like President Trump that is notorious for being very, very blunt when he wants to be blunt, that seemed to be an awful light touch for him.

MCEVERS: So you're saying if he wanted to get involved in this investigation in that moment, he would have just said it straight up.

LANKFORD: My perception of the president is if he has something in his head that he wants to say bluntly and clearly, he has the capability to do that.

MCEVERS: So you don't think he obstructed justice then.

LANKFORD: I don't based on that dialogue and that conversation. I don't hear obstruction of justice in that. What I hear is someone saying, gosh, I wish this was different, but it's not.

MCEVERS: Then, three months after this February meeting...

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UNIDENTIFIED REPORTER #1: Good evening, everybody. We begin with breaking news, big news...

MCEVERS: ...Trump fires Comey.

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UNIDENTIFIED REPORTER #2: The fallout now after the firing of FBI Director James Comey.

MCEVERS: At first the White House says it's because Comey mishandled the investigation into Hillary Clinton's emails. Then the White House says it's because FBI agents were complaining about Comey. Most legal scholars agree that a president can hire and fire who he wants. But then Trump tells Lester Holt on NBC he fired Comey because of Russia.

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PRESIDENT DONALD TRUMP: And in fact, when I decided to just do it, I said to myself - I said, you know, this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should have won.

MCEVERS: That's a big change, right? That's way different than the original justification. And why is that potentially problematic?

JOHNSON: Remember; when you're thinking about things as possible obstruction of justice, there has to be some kind of state of mind. And it's a high bar to get a corrupt state of mind. The president has now said on national television that he was thinking of Russia when he fired Jim Comey, who was playing a big role in the Russia investigation. And so that doesn't get you all the way there, but it provides some insight into the president's state of mind, into his thinking.

MCEVERS: At this point, May 2017, Democrats and some Republicans start to pressure the Justice Department, saying this investigation is getting too politicized. So the Justice Department appoints a special counsel to run the investigation. This is where Robert Mueller comes in.

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MCEVERS: And in the months since, there have been other reports that suggest possible obstruction - reports that Trump at one point wanted to fire Mueller and reports that he tried to get the attorney general not to recuse himself from the Russian investigation. So now, what if Mueller does have enough evidence for obstruction? Then what? The Justice Department says you can't indict a sitting president, so you either wait until he's not president or you pass what you have to Congress. And just remember; in the cases of the only two presidents in modern history who have faced articles of impeachment in Congress, Richard Nixon and Bill Clinton, they both included charges of obstruction of justice. So I ask Carrie Johnson about all this.

I want to talk about the elephant in the room because people from every Uber driver that I ever have to, like, my relatives ask me about this. How does impeachment figure in? I think there's a large part of the voting public that thinks, oh, Mueller's going to find all this bad stuff and then he's going to hand it all to Congress, Democrats are going to win in the midterms, and then they're going to impeach Trump. And then it's all over.

JOHNSON: That's a lot of ifs.

MCEVERS: Right.

JOHNSON: That's a lot of ifs. So...

MCEVERS: Tons of ifs, the biggest one of course being, do Democrats control the House and Senate? But from, like, the standpoint of an obstruction of justice case, could it even lead there? And what all would have to happen for it to do that?

JOHNSON: So let's say Robert Mueller compiles a boatload of evidence. Where does he take that evidence?

MCEVERS: Mueller first has to give his evidence to Rod Rosenstein, the deputy attorney general who's in charge of the investigation. Then Rosenstein decides what to do with that file. He could give it to Congress. Then the House would vote whether or not to impeach. If that vote is yes, the Senate would hold impeachment proceedings like a trial and a two-thirds majority would be needed to convict. Carrie Johnson says everyone who's imagining these impeachment proceedings should probably just slow down.

JOHNSON: That's way ahead of where we are right now at this moment in time. And it requires a lot of assumptions like that there is evidence the president of the United States committed some kind of legal violation, that people in the House of Representatives are willing to accept that information and do something with it. I'm not sure that either of those things are true at the moment that we are speaking.

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SHAPIRO: That was NPR justice correspondent Carrie Johnson and Kelly McEvers, host of the podcast Embedded.

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