The key bit comes at 5:35 below. At least three top White House aides have been asked whether there are “tapes” of Trump chatting with Comey, as the president implied on May 12th, and all three have conspicuously refused to give straight answers. Sean Spicer went to comic lengths to avoid saying yes or no on May 15th. Sarah Huckabee Sanders was asked at yesterday’s briefing whether tapes exist and said “I have no idea,” a surprising (possibly willful) degree of ignorance in light of Comey’s testimony yesterday morning. Now here’s Conway, usually one of Trump’s most aggressive spokesmen, also no-commenting her way out of a question. If there are no recordings, there’s no reason they shouldn’t say so. The only reason I can think of to avoid a straight denial is because they know there are recordings and fear they may be called to testify by a congressional committee or by Bob Mueller and don’t want to have to admit to lying when they do.
“I can’t comment on that,” Conway emphatically said.
When asked by MacCallum why Conway couldn’t comment on the notion of private tapes, Conway answered, “Because I can’t comment. I work in the White House.”
“But if there are no tapes, can’t you just say that?” MacCallum asked in response.
Conway fired back, “I can’t comment on that. And the president has also said that he won’t comment any further on that.”
Here’s one non-legal possibility for why Trump’s aides might not want to deny the existence of recordings even if they don’t, in fact, exist:
Seems possible Trump pulled tape comment out of butt and WH staffers feel denial could embarrass him.
— andrew kaczynski (@KFILE) June 9, 2017
Conway et al. know that you don’t contradict the boss, even when doing so would help him politically. I don’t know, though: The “tapes” tweet could be spun as Trump simply saying in his own colorful way that Comey wasn’t telling the truth about a loyalty pledge or their chat about Mike Flynn. Take Trump seriously but not literally, as the saying goes: His point in the tweet wasn’t necessarily that there are tapes, merely that if there were, Comey could be exposed as the liar he is. That’s easy damage control, yet Conway and Spicer haven’t used it. Which makes me think embarrassing Trump by denying the tapes isn’t the problem here.
This is closer to the truth, I think:
@JoePCunningham has an interesting theory that convos at WH are routinely taped, but that Trump wasn't supposed to reveal that.
— Gabriel Malor (@gabrielmalor) June 9, 2017
I can’t recall offhand a single example of a White House official flatly denying that there are tapes, so … there are probably tapes. And thanks to Trump, everyone sort of knows it. That leaves his aides in an odd position of knowing that most visitors who meet with Trump in the Oval Office will naturally assume that they’re being recorded yet the aides can’t admit that for fear of further publicizing what was always supposed to be secret, until the president started popping off on Twitter.
Here’s a better question: Why hasn’t the Senate Intelligence Committee subpoenaed the tapes yet? This is no longer a matter of idle curiosity about what was said between Trump and Comey. The president accused his former FBI chief this morning of perjury during his testimony yesterday:
Despite so many false statements and lies, total and complete vindication…and WOW, Comey is a leaker!
— Donald J. Trump (@realDonaldTrump) June 9, 2017
Trump would naturally assert executive privilege to fight the subpoena, but the privilege isn’t foolproof. A court might find that he had implicitly waived it by discussing his conversations with Comey with the media. Even if a judge concluded that he hasn’t waived it, there’s an enormous public interest in knowing whether Comey lied to the Senate under oath about the president having committed an abuse of power by trying to influence a federal investigation. If Trump has evidence that can prove or disprove that claim, that public interest may override the public interest in letting the president enjoy confidentiality in his discussions with other federal officials. Accusing Comey of lying may have opened the door to a subpoena that can’t be quashed — assuming Richard Burr ever signs off on one. Will he? If not, why not?