Renato Marotti, a former prosecutor, tweeted today the revelations in yesterday’s NY Times story about the initial draft of the letter firing James Comey may make VP Pence at least a witness, but also “may open the door” to a charge of misprision of a felony, which has these elements:
“(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.”
According to the Times story,
Mr. Trump was back in Washington on Monday, May 8, when copies of the letter were handed out in the Oval Office to senior officials, including Mr. McGahn and Vice President Mike Pence. Mr. Trump announced that he had decided to fire Mr. Comey, and read aloud from Mr. Miller’s memo.
“Mr. Miller’s memo” was the “screed” admitting Trump fired Comey because of the Russia investigation. Yet two days later, on May 10, Pence said the President made the decision through accepting “the recommendation of the deputy attorney general and the attorney general to remove Director Comey as the head of the FBI.” That is, the Rosenstein pretext letter blaming the firing on Comey’s Hillary email actions.
A day after that, Trump contradicted this, saying to Lester Holt the real reason was the Russia Probe. ( Politico, May 11, 2017).
So knowing the real reason on Monday, on Wednesday Pence publicly stated the reason was the Rosenstein pretextual letter.
Applying the elements of misprision, that crime occurred if all of these were true:
- The “principal” (Trump, Miller) committed a felony such as obstruction of justice.
- The “defendant” (i.e., for misprision) had knowledge of this.
- The defendant failed to notify the authorities (of the obstruction).
- The defendant took steps to conceal (e.g., making statements like the firing was because of the Rosenstein letter).
Prof. Lawrence Tribe tweets the facts already point to misprision of a felony, but Marotti does not yet go that far.
At the very least, the “Screed” Letter provides the missing link as to knowledge of Pence and others of the real reason for Trump firing Comey.