A mem­ber

But Seku­low ad­mits un­cer­tainty in state­ments that con­tra­dict tweet

The Washington Post - - FRONT PAGE - BY JOHN WAG­NER AND ROS­ALIND S. HEL­DER­MAN john.wag­ner@wash­post.com ros­alind.hel­der­man@wash­post.com

of his le­gal team in­sisted that Pres­i­dent Trump is not un­der in­ves­ti­ga­tion for ob­struc­tion of jus­tice — with­out cer­tainty.

A mem­ber of Pres­i­dent Trump’s le­gal team re­peat­edly in­sisted that Trump is not un­der in­ves­ti­ga­tion for ob­struc­tion of jus­tice but ac­knowl­edged he could not know for cer­tain dur­ing com­bat­ive Sun­day tele­vi­sion in­ter­views.

“Let me be very clear here, as it has been since the be­gin­ning, the pres­i­dent is not and has not been un­der in­ves­ti­ga­tion for ob­struc­tion,” lawyer Jay Seku­low said on NBC’s “Meet the Press,” part of a blitz of book­ings on the Sun­day morn­ing pub­lic af­fairs shows.

That as­sess­ment, re­peated on three other broad­casts, was at odds with a Wash­ing­ton Post report last week and seem­ingly with a tweet by Trump on Fri­day.

Dur­ing a later ap­pear­ance on “Fox News Sun­day,” Seku­low con­ceded that he could not say with ab­so­lute cer­tainty that Trump is not be­ing in­ves­ti­gated be­cause he can­not read the mind of spe­cial coun­sel Robert S. Mueller III.

The Post re­ported last week that Mueller, who was ap­pointed to over­see the in­ves­ti­ga­tion into Rus­sia’s role in the 2016 elec­tion, is in­ter­view­ing se­nior in­tel­li­gence of­fi­cials as part of a widen­ing probe that now in­cludes an ex­am­i­na­tion of whether Trump at­tempted to ob­struct jus­tice.

On Twit­ter on Fri­day, Trump wrote as part of a tweet about the probe that “I am be­ing in­ves­ti­gated.”

On Sun­day, Seku­low sought to ex­plain that Trump was us­ing Twit­ter, a fa­vorite means of com­mu­ni­ca­tion with his sup­port­ers, to ad­dress The Post report and was not con­firm­ing that he is be­ing in­ves­ti­gated, de­spite typ­ing those words.

“The pres­i­dent is not un­der in­ves­ti­ga­tion by the spe­cial coun­sel,” Seku­low told NBC’s Chuck Todd. “The tweet from the pres­i­dent was in re­sponse to the five anony­mous sources that were pur­port­edly leak­ing in­for­ma­tion to The Wash­ing­ton Post about a po­ten­tial in­ves­ti­ga­tion of the pres­i­dent.”

Seku­low cited re­cent con­gres­sional tes­ti­mony by fired FBI direc­tor James B. Comey in which Comey said he had told Trump on a few oc­ca­sions that Trump was not per­son­ally un­der in­ves­ti­ga­tion in re­la­tion to the Rus­sia probe. Those con­ver­sa­tions, how­ever, oc­curred be­fore Trump fired Comey, who was help­ing lead the in­ves­ti­ga­tion, and be­fore the Jus­tice Depart­ment ap­pointed a spe­cial coun­sel to over­see the probe.

Last week’s Post story cited five peo­ple briefed on the in­ter­view re­quests, who said that Direc­tor of Na­tional In­tel­li­gence Daniel Coats, Na­tional Se­cu­rity Agency Direc­tor Michael S. Rogers and Rogers’s re­cently de­parted deputy, Richard Led­gett, agreed to be in­ter­viewed by Mueller’s in­ves­ti­ga­tors.

The five peo­ple spoke on the con­di­tion of anonymity be­cause they were not au­tho­rized to dis­cuss the mat­ter pub­licly.

Seku­low re­ferred to The Post story as “a fake report” dur­ing an ap­pear­ance on CNN’s “State of the Union” on Sun­day.

“We stand by our story, which Pres­i­dent Trump con­firmed Fri­day in a tweet ac­knowl­edg­ing he is un­der in­ves­ti­ga­tion for ob­struc­tion of jus­tice,” Post Ex­ec­u­tive Ed­i­tor Martin Baron said in a state­ment.

Other news out­lets, in­clud­ing the Wall Street Jour­nal and NBC News, have had sim­i­lar re­ports since The Post broke the news Wed­nes­day night about Trump be­ing un­der in­ves­ti­ga­tion.

In a testy ex­change on Fox, Seku­low ac­knowl­edged he could not know for sure that Mueller has not opened an in­ves­ti­ga­tion but said he had no rea­son to be­lieve Mueller had.

“Noth­ing has changed” since Comey in­formed the pres­i­dent that he was not be­ing per­son­ally in­ves­ti­gated, Seku­low said.

The in­ter­view turned tense, how­ever, when host Chris Wal­lace then asked Seku­low about the re­main­der of Trump’s tweet, in which Trump had com­plained that he was be­ing in­ves­ti­gated for fir­ing Comey by the man who told him to fire Comey.

Wal­lace asked Seku­low if Trump be­lieves that Deputy At­tor­ney Gen­eral Rod J. Rosen­stein, who wrote a memo crit­i­ciz­ing Comey’s han­dling of the Hil­lary Clin­ton email in­ves­ti­ga­tion, has done any­thing wrong.

Seku­low re­sponded that Trump had been get­ting at a “con­sti­tu­tional is­sue.”

“He’s be­ing in­ves­ti­gated for tak­ing the ac­tion that the at­tor­ney gen­eral and the deputy at­tor­ney gen­eral rec­om­mended him to take, by the agency that rec­om­mended he take the ac­tion. That’s the con­sti­tu­tional thresh­old is­sue,” Seku­low said.

When Wal­lace pointed out that Seku­low had ap­peared to agree in his an­swer that the pres­i­dent is un­der in­ves­ti­ga­tion, the lawyer grew flus­tered. He said he had only been dis­cussing the con­sti­tu­tional prob­lem posed if the pres­i­dent were be­ing in­ves­ti­gated.

“I don’t ap­pre­ci­ate you putting words in my mouth when I’ve been crys­tal clear that the pres­i­dent is not and has not been un­der in­ves­ti­ga­tion,” he said.

“But you don’t know that he’s not un­der in­ves­ti­ga­tion again, sir?” Wal­lace re­sponded.

“You’re right, Chris. I can­not read the mind of the spe­cial pros­e­cu­tor,” Seku­low re­sponded.

“We’re in agree­ment then,” Wal­lace said.

Asked on the CBS show “Face the Na­tion” how he could know Trump is not un­der in­ves­ti­ga­tion, Seku­low re­sponded: “Be­cause we’ve re­ceived no no­ti­fi­ca­tion of in­ves­ti­ga­tion.”

He added that he could not “imag­ine a sce­nario” where Trump would be un­der in­ves­ti­ga­tion and not be aware of it.

A pros­e­cu­tor may in­form the sub­ject or tar­get of an in­ves­ti­ga­tion that a probe is un­der­way but is un­der no obli­ga­tion to do so.

Ac­cord­ing to the U.S. At­tor­ney’s Man­ual, pros­e­cu­tors are en­cour­aged to no­tify in­ves­ti­ga­tion tar­gets at a “rea­son­able time” be­fore seek­ing an in­dict­ment, to pro­vide a tar­get the op­por­tu­nity to tes­tify in front of a grand jury. But it out­lines no re­quire­ment of no­ti­fi­ca­tion, par­tic­u­larly while pros­e­cu­tors are gath­er­ing ev­i­dence.

Seku­low also told CBS on Sun­day that Trump re­mains will­ing to speak un­der oath about the Rus­sia mat­ter, as Trump had promised at a Rose Gar­den news con­fer­ence ear­lier this month.

But Seku­low said he has not yet de­ter­mined whether such a ses­sion would take place with Mueller or as part of on­go­ing con­gres­sional in­ves­ti­ga­tions into Rus­sian med­dling in the elec­tion.

Seku­low also said that he thinks Trump will ad­dress the ques­tion of whether there are record­ings of his pri­vate con­ver­sa­tions with Comey “in the week ahead.”

Seku­low had made a sim­i­lar prom­ise dur­ing in­ter­views last week, but he said the re­lease of in­for­ma­tion about pos­si­ble tapes had been de­layed by events last week, in­clud­ing Trump’s speech re­defin­ing the U.S. re­la­tion­ship with Cuba and the shoot­ings at a Repub­li­can con­gres­sional base­ball prac­tice in Vir­ginia.

On Fox, Wal­lace asked Seku­low if Trump be­lieves the law al­lows for a pres­i­dent to be in­dicted.

Con­sti­tu­tional schol­ars have de­bated the ques­tion for years, al­though the Jus­tice Depart­ment has said in for­mal opin­ions writ­ten un­der for­mer pres­i­dents Bill Clin­ton and Richard Nixon that the Con­sti­tu­tion bars a sit­ting pres­i­dent from fac­ing le­gal in­dict­ment.

Seku­low re­sponded that Trump couldn’t be in­dicted, “be­cause there’s not an in­ves­ti­ga­tion.”

“Oh boy, this is weird,” Wal­lace re­sponded. “You don’t know whether there’s an in­ves­ti­ga­tion. You just told us that.”

Seku­low also in­sisted that Trump’s tweets have posed no prob­lems for his le­gal team. He said Trump had learned the ef­fec­tive­ness of so­cial me­dia as a com­mu­ni­ca­tions tool dur­ing the cam­paign.

“Noth­ing he’s tweeted has caused me any is­sues what­so­ever,” he said. “Noth­ing.”

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