The first thing we can say is that there is no basis for saying the tape was “fudged" or manipulated — nor is Sekulow saying that, exactly. Nor did Rudy Giuliani, when he also brought this up last month. Trump, as he often does, takes the argument to its hyperbolic extreme. His lawyers, by contrast, are arguing more about the full context of Trump’s remarks.
The complaint isn’t that Trump’s comment about firing FBI Director James Comey is deceptively cut; it’s about a later quote that they say has gotten less attention but makes the earlier quote less ... well ... obstruction-y.
Trump’s legal team laid out this whole argument in a confidential January letter to Mueller that the New York Times obtained this summer:
Because it has been so widely misreported and mischaracterized, we believe it is important to present the exchange in its entirety. What the President actually said was this: “I was going to fire Comey knowing there was no good time to do it. 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.” The President and Mr. Holt then talk over each other for approximately a minute, before the President completed his original thought by saying,“As far as I’m concerned, I want that thing [the Russia investigation] to be absolutely done properly. When I did this now, I said I probably maybe will confuse people. Maybe I’ll expand that- you know, I’ll lengthen the time because it should be over with. It should — in my opinion, should’ve been over with a long time ago because it — all it is an excuse. But I said to myself I might even lengthen out the investigation. But I have to do the right thing for the American people. He’s the wrong man for that position.”Later in the interview, the following exchange took place:PRESIDENT: “I want very simply a great FBI director.”HOLT: “And will you expect if they would — they would continue on with this investigation ....”PRESIDENT: "Oh, yeah, sure. I expect that.”
NBC released the full interview after it was recorded, so all of this has been in the public domain. Trump may take issue with the fact that the interview has been clipped by people to just show that quote and not the later one, including in tweets like this, but the full context has been out there for 16 months.
From there, though, the question is this: Does Trump’s later quote at all mitigate any potential obstruction of justice in the earlier quote?
I’ve argued for a while that Trump’s big quote isn’t as cut-and-dried as some believe it is. Trump never explicitly says that he fired Comey because of the Russia investigation; he instead says that the Russia investigation was on his mind when he did it. To some, that’s a distinction without a difference. Legally speaking, though, it’s notable that Trump doesn’t precisely say the reason for Comey’s termination was the Russia probe.
Trump’s legal team is arguing that the later statement calls into doubt the idea that this was meant to influence or end the probe. If Trump was saying he knew Comey’s firing would “lengthen” the probe, that means he knew he wasn’t effectively shutting it down.
At the same time, just because an investigation might be longer doesn’t mean he wasn’t obstructing it. If Trump were getting rid of Comey because he thought Comey was a liability, still having an investigation — even a longer one — run by someone friendlier could be understood as an effort to affect its course in a more Trump-friendly direction.
In other words, the interview was neither “fudged,” nor is it exculpatory. It does suggest Trump didn’t see his action as ending the probe; it doesn’t change the fact that he appears to say he knew he was affecting the course of an investigation involving him that he didn’t agree with.
It’s up to Mueller to decide whether that — and lots of other things — amount to obstruction of justice.