The news last week was stunning and historic: the special counsel’s investigation into the Russia scandal now includes “an examination of whether President Trump attempted to obstruct justice.” It makes Donald Trump only the third sitting American president ever to face a federal probe from the Justice Department.
Responding to the multiple news outlets that reported the developments, Trump complained on Twitter, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” The statement seemed to represent a not-so-subtle shot at Deputy Attorney General Rod Rosenstein, but it also seemed to confirm the underlying story.
Or so we thought. As Rachel noted on Friday’s show, the White House balked soon after, arguing that just because the president wrote, “I am being investigated,” it doesn’t mean he’s being investigated.
If that wasn’t confusing enough, things got worse yesterday. Jay Sekulow, best known for his role as the head of TV preacher Pat Robertson’s legal group, appeared on several Sunday shows in his capacity as a leading member of Trump’s defense team. He repeatedly insisted the president is not being investigated and Friday’s tweet was intended to paraphrase media accounts. (This is not the first time Trump World said it’s the media’s fault the president used words the White House didn’t want him to use.)
But Sekulow’s case took a strange turn during an interview with Fox News’ Chris Wallace: I bolded the phrase that stood out as especially problematic:
“And now he’s being investigated by the Department of Justice — because the special counsel under the special counsel regulations reports still to the Department of Justice, not an independent counsel — so he’s being investigated for taking the action that the attorney general and deputy attorney general recommended him to take by the agency who recommended the termination. So that’s the constitutional threshold question here.”
When the host noted that Sekulow had just twice said the president is under investigation, the attorney insisted otherwise. “No, he’s not being investigated,” the president’s lawyer said.
“Sir, you just said two times that he’s being investigated,” Wallace responded, looking rather annoyed. “No,” Sekulow said, “The context of the tweet, I just gave you the legal theory, Chris, of how the Constitution works.”
Sekulow went on argue that to say he claimed Trump is under investigation is “unfair,” adding, “I do not appreciate you putting words in my mouth.”
I’ve tried to look at this in the most charitable way possible. Maybe Trump (with his tweet) and Sekulow (with his on-air comments) were trying to describe a hypothetical scenario, responding to circumstances that could, but don’t, exist.
This is, however, a tough sell, in part because multiple major news organizations have confirmed that the president is in fact being investigated for obstruction of justice, and in part because of phrases such as “I am being investigated” and “He’s being investigated” don’t lend themselves to nuanced interpretations.
Postscript: In the same “Fox News Sunday” interview, Sekulow argued, “Unlike James Comey, who leaks information to the press, I actually respect the attorney-client privilege. Apparently he did not.”
In context, Sekulow seemed to argue that Comey, in his capacity as the director of the FBI, should’ve considered his conversations with the president to be privileged — which is to say, confidential information, not to be shared, between a lawyer and that lawyer’s client.
Except that’s ridiculous. Comey led the FBI; he wasn’t Trump’s attorney. To hear Sekulow tell it, if the president speaks to anyone who’s passed a bar exam, that person should “respect the attorney-client privilege” and never divulge the contents of that conversation.
Given the severity of the president’s crisis, Trump needs good attorneys who’ll give him sound advice. There’s reason to doubt the competence of the president’s current legal team.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."