Trump lawyer Jay Sekulow made the rounds of the Sunday morning talk shows trying to explain that when Trump tweeted “I am being investigated” he really meant “I am not being investigated.” After all, there’s only a difference of one small word.
On Meet The Press, Sekulow’s performance was reminiscent of the Saturday Night Live spoof of Sean Spicer’s ludicrous attempts to explain that Trump’s statements weren’t really Trump’s statements.
The difference is that Sekulow wasn’t trying to be funny, at least not intentionally.
Sekulow told Chuck Todd that “the president is not under investigation by the Special Counsel.” Sekulow was unequivocal in his denial. He said that “as we know from James Comey’s testimony, and as we know it today, the president has not been and is not under investigation.”
Todd then tied himself and Sekulow in knots trying to get a straight answer to the question of why Trump would say he was under investigation one minute, and then have his lawyer deny it the next.
But Todd wasn’t asking the right question. Asking Sekulow, or anybody else, to try to explain away Trump’s statements is, of course, a fool’s errand. It can only lead to the kind of gibberish we heard from Sekulow on Sunday.
What Todd should have asked Sekulow was how did he know that Trump wasn’t being investigated.
Clearly, Sekulow’s claim of reliance on Comey’s testimony was misleading. Comey’s knowledge of and testimony about the nature of the investigation was limited to what he knew at the time he was fired. But nobody is claiming that Trump was the subject of an investigation at the time Comey was fired. Rather, all of the reporting on the subject has indicated that the investigation into Trump’s possible obstruction of justice began shortly after Comey was fired.
Once you take the Comey testimony off the table as the potential basis for Sekulow’s denial, it becomes highly unlikely that Sekulow, or anybody else on Trump’s team, would or could know if Trump is being investigated by the Special Counsel.
It is not in the prosecutor handbook of best practices to give targets of a criminal investigation a heads up.
More often, the opposite is true. Prosecutors generally want to keep targets in the dark as long as possible to prevent them from fleeing, destroying evidence or attempting to influence witnesses.
Okay, Trump’s not a flight risk. He prefers the comforts of home. But there’s still no reason why the Special Counsel would make a formal declaration of Trump’s status in the investigation, one way or the other. As a general rule, prosecutors only provide “target letters” when they want something from the target, such as an interview, sworn testimony, documents, a grand jury appearance, a settlement discussion, or something else.
If all Sekulow meant when he told Todd that Trump wasn’t being investigated was that he had no knowledge one way or the other, then that’s what he should have said. But that’s not what he said. Rather, he categorically denied the existence of an investigation.
There’s a word for flatly denying something when all you can say truthfully is that you don’t know. It’s called a lie.
Todd didn’t have the presence of mind to call out Sekulow’s dissembling. But somebody else did.
The unlikely hero of this piece is Fox News. In an interview on Fox News Sunday, moderator Chris Wallace did what Todd wasn’t able to do. He pinned Sekulow down and exposed the lack of a credible basis for him to claim that Trump wasn’t under investigation.
Sekulow tried to sell Wallace the same line he had sold Todd. “I have made it crystal clear that the President is not and has not been under investigation by the Special Prosecutor.“ But in the same interview, he made the more equivocal statement that “no one has notified us that he is.”
There’s a big difference between flatly denying that something happened, on the one hand, and simply not having been told about it, on the other. Being uninformed about something doesn’t mean that it didn’t happen.
Wallace jumped all over Sekulow’s double-talk: “Well, you don’t know that he’s not under investigation.”
Sekulow, caught, was forced to concede the point, although not without a dose of snark: “You’re right, Chris. I cannot read the mind of the Special Prosecutor.”
Being unable to read minds appears to be the least of Sekulow’s shortcomings. He seems also to have a problem with being straightforward and forthright.
Who would have thought that it would take Fox News to expose him?
Philip Rotner is a writer, attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.