Are there Trump tapes? Congress is asking, and it may issue subpoenas

WASHINGTON – In the wake of James Comey’s riveting testimony, congressional investigators say they want to know if the White House has recordings of Trump’s discussions with the former FBI director. If it does, they want to listen to them.

Trump added to the mystery Friday by saying he will address the question of tape recordings “sometime in the very near future,” while warning reporters they would be disappointed.

On Friday, the House Intelligence Committee sent letters to White House counsel Don McGahn, asking “whether any White House recordings or memoranda of Comey’s conversations with President Trump now exist or have in the past.” The committee said it wants those materials by June 23.

Rep. Adam Schiff, the ranking Democrat on the House Intelligence Committee, said his committee is now focusing on verifying Comey’s testimony.

“If there are tapes of the conversations at the White House, we’d like to know,” said Schiff, D-Calif. “Now is the time for a lot of hard spade work.”

Verification of Comey’s claims are seen as an important next step in determining if congressional investigators should start focusing on possible obstruction of justice. The former FBI director’s testimony could also prompt an expansion of the ongoing investigation by special counsel Robert Mueller, said Carole Rendon, former U.S. attorney for the Northern District of Ohio.

Rendon, now in private practice at BakerHostetler, said she expects that, following Comey’s testimony, “the investigation will expand to include possible obstruction of justice.”

Comey’s testimony to the Senate Intelligence Committee Thursday was based on notes he made after nine conversations with Trump. But after Trump fired Comey in May, the president tweeted: “Comey better hope that there are no ‘tapes’ of our conversations before he starts leaking to the press!” The White House has not confirmed if such tapes exist.

The Senate Judiciary Committee, headed by Sen. Chuck Grassley, R-Iowa, has requested the tapes. The committee has not yet heard back if any tapes exist, and if so, whether they will be turned over.

Jill Wine-Banks, a former Watergate prosecutor, questioned why Republican-led congressional committees have not issued subpoenas for the tapes. Many past presidents have used tape recording systems, either for future use to recheck conversations or for eventual use by historians.

“They forget that the taping system was there, so they have these conversations totally forgetting that they were recording themselves having them,” she told McClatchy.

Sen. Mark Warner, the ranking Democrat on the Senate Intelligence Committee, has said that he would “absolutely” issue subpoenas for White House tapes, if it is determined they exist. Sen. Richard Burr, the North Carolina Republican who heads the intelligence committee, has not commented on the issue, but he and Warner have pledged to follow the inquiry wherever it may lead them.

The investigation does not end with Comey’s conversations, or the tapes, however.

Burr noted that a day before the public hearing with Comey (which was followed by a closed-door session), the committee met with Director of National Intelligence Daniel R. Coats, Acting FBI Director Andrew McCabe, National Security Agency Director Adm. Michael Rogers and Deputy Attorney General Rod Rosenstein in open session.

Coats and Rogers have so far refused to respond to Congress on whether they, at Trump’s request, asked Comey to curtail the investigation of ousted national security adviser Michael Flynn. Wednesday’s hearing prompted a number of questions that were answered with “I can’t respond in an open session.”

Burr said the committee would seek a closed session with those men “probably next week.”

Schiff said the House committee would also like to hear from the directors, as well as CIA Director Mike Pompeo. Beyond that, he said they’d work to verify Comey’s testimony. He said they may call in FBI officials, including those sitting in the room with Comey during one of his phone conversations. He said they’d also like to hear from former Homeland Security Secretary Jeh Johnson. And the list goes on.

In his testimony and prepared seven-page statement for Thursday’s hearing, Comey said that he’d taken the unusual step of making a written record of his conversations because he thought the president “might lie” about them later. He also said that he took it as a “directive” when Trump asked him, in a room he had cleared of a cabinet member and senior advisers, to “let this go” regarding an investigation of Flynn.

Trump and his personal lawyer have strongly denied much of Comey’s claims, with the president disputing Friday that he had asked for loyalty from the FBI director and asked him to lay off the Flynn investigation. “Yesterday showed no collusion, no obstruction,” Trump said at a Rose Garden news conference with Romanian President Klaus Iohannis.

Following Thursday’s hearing, Burr, the Senate Intelligence Committee chairman, declined be drawn out when asked if he was more inclined to believe Comey or Trump.

“Our job is to gather information and we’ll let the American people determine,” he said.

Beyond verification of what’s been said, or tweeted, there are potential new angles to pursue.

Kathleen Clark, who teaches law at Washington University in St. Louis and is a specialist in government ethics, noted that Deputy Attorney General Rosenstein, prior to appointing Mueller, wrote a memo making the case for firing Comey. That could now become an issue, she said.

“If Mueller investigates whether Trump’s interactions with Comey – including firing him – constitute obstruction of justice, then Rosenstein would have to recuse himself from that matter,” she said. Rosenstein’s role right now includes receiving reports about “major actions” by the special counsel, and he has pledged that if Mueller’s investigation looks at obstruction, then he would step away from that role.