Experts: Trump’s alleged conversations with Comey improper

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.

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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."

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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.

Key Trump officials, advisers of note in the Russia probe
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Key Trump officials, advisers of note in the Russia probe

Tom Barrack

The close friend to Donald Trump and CEO of private equity firm Colony Capital recommended that Trump bring in Paul Manafort for his presidential campaign.

R. James Woolsey

Woolsey, the former director of the Central Intelligence Agency (CIA), has cooperated with Mueller's investigation and worked with Michael Flynn and was present at a meeting where they discussed removing the controversial Turkish Muslim cleric Fetullah Gulen from US soil. 

(Christopher Goodney/Bloomberg via Getty Images)

The former senior Trump campaign official and White House adviser was present and crucial during the firings of Michael Flynn and James Comey.

The former head of the Trump transition team following the 2016 election has said previously that he believes he was fired due to his opposing the hiring of Michael Flynn as national security adviser.

Jeff Sessions

Former U.S. senator Jeff Sessions from Alabama joined Trump's campaign as a foreign policy adviser in February 2016. Sessions was nominated to be U.S. attorney general by President Trump and was then confirmed by the Senate. Reports then emerged that Sessions had spoken twice with Sergey Kislyak while he was senator -- a fact that he left out of his Senate hearing testimony. Instead, he said in writing that he had not communicated with any Russian officials during the campaign season. Sessions defended himself saying he had spoken with Kislyak specifically in a senate capacity.

Paul Manafort

Paul Manafort signed on as Donald Trump's campaign manager in March 2016. A longtime Republican strategist and beltway operative, Manafort had previously served as an adviser to former Ukrainian president Viktor Yanukovich -- a pro-Russia leader who was violently ousted in 2014. Manafort resigned from his campaign position in August 2016 amid questions over his lobbying history in Ukraine for an administration supportive of Russia. The former campaign manager reportedly remained in Trump's circle during the post-election transition period.

Michael Flynn

Gen. Michael Flynn was named President Trump's national security adviser in November of 2016. Flynn reportedly met and spoke with Russian Ambassador Sergey Kislyak in December, at one point discussing sanctions. Flynn originally told Vice President Pence he did not discuss sanctions -- a point the Department of Justice said made the national security adviser subject to blackmail. Flynn resigned from his position in February.

Donald Trump

2016 election winner Donald Trump is at the center of special counsel Robert Mueller's probe into Russia's handlings.

Sam Clovis

Clovis, a former member of the Trump campaign, arrives on at the U.S. Capitol December 12, 2017 to appear before a closed meeting of the House Intelligence Committee. Clovis worked with George Papadopoulos, a former Donald Trump campaign foreign policy advisor who struck a plea deal on charges of lying to the FBI.

(Photo by Win McNamee/Getty Images)

Roger Stone

Stone is a longtime Republican political consultant who served as a campaign adviser to Trump who continued to talk with the then-GOP candidate after stepping away from his adviser role. Stone claimed last year that he had knowledge of the planned WikiLeaks release of emails pertaining to Hillary Clinton and the Democratic National Committee. Stone recently admitted to speaking via direct message with "Guccifer 2.0" -- an online entity U.S. officials believe is tied to Russia. Stone says the correspondence was “completely innocuous.”

Carter Page

Page worked for Merrill Lynch as an investment banker out of their Moscow office for three years before joining Trump's campaign as a foreign policy adviser. During his time with Merrill Lynch, Page advised transactions for two major Russian entities. Page has called Washington "hypocritical" for focusing on corruption and democratization in addressing U.S. relations with Russia. While Page is someone Trump camp has seemingly tried to distance itself from, Page recently said he has made frequent visits to Trump Tower.

J.D. Gordon

Before Gordon joined the Trump campaign as a national security adviser in March 2016, he served as a Pentagon spokesman from 2005 through 2009. Like others involved in Trump-Russia allegations, Gordon met with ambassador Kislyak in July at the Republican National Convention, but has since denied any wrongdoing in their conversation. He advocated for and worked to revise the RNC language on and position toward Ukraine relations, so it was more friendly toward Russia's dealings in the country.

Former Trump campaign aide Michael Caputo (L)

Caputo waves goodbye to reporters after he testified before the House Intelligence Committee during a closed-door session at the U.S. Capitol Visitors Center July 14, 2017 in Washington, DC. Caputo resigned from being a Trump campaign communications advisor after appearing to celebrate the firing of former campaign manager Corey Lewandowski. Denying any contact with Russian officials during the 2016 campaign, Caputo did live in Moscow during the 1990s, served as an adviser to former Russian President Boris Yeltsin and did pro-Putin public relations work for the Russian conglomerate Gazprom Media.

(Photo by Chip Somodevilla/Getty Images)

Stephen Miller, White House Senior Advisor for Policy

Jason Miller
Former White House Press Secretary Sean Spicer
Eric Trump
Donald Trump Jr.
Ivanka Trump
White House Senior adviser Jared Kushner
Executive assistant to Donald Trump Rhona Graff
White House Communications Director Hope Hicks
Former Trump campaign manager Corey Lewandowski
US Vice President Mike Pence
Katrina Pierson
K.T. McFarland
Former White House Communications Director Anthony Scaramucci

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."

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