A memo by James Comey offers the clearest-yet evidence that the God-King tried to shut down the FBI investigation of Michael Flynn. (More)
“I hope you can let this go.”
President Trump asked the FBI to drop its probe into former national security adviser Michael Flynn and urged former FBI director James B. Comey instead to pursue reporters in leak cases, according to associates of Comey who have seen private notes he wrote recounting the conversation.
According to the notes written by Comey following a February meeting with the president, Trump brought up the counterintelligence investigation into Flynn and urged Comey to drop the probe in the wake of the national security adviser’s resignation.
The conversation between Trump and Comey took place after a national security meeting. The president asked to speak privately to the FBI director, and the others left the room, according to the Comey associates, who, like other officials, spoke on the condition of anonymity because they were not authorized to reveal internal discussions.
“I hope you can let this go,’’ Trump said, according to the Comey notes, which were described by the associates. Comey’s written account of the meeting is two pages long and highly detailed, the associates said.
Comey had a long-standing practice of immediately writing memos to record what was said in meetings. The Times, the Post, and other sources report that House Oversight Committee Chair Jason Chaffetz (R-UT) will subpoena the Comey memos. In legal parlance, such a document meets the “recorded recollection” exception to the hearsay rule, and it came out the same day Sen. Lindsey Graham (R-SC) invited Comey to testify in a public hearing of the Senate Judiciary Committee. Thus, the memo would bolster Comey’s testimony if what he tells the committee is consistent with the memo. And you can bet it will be, because the memo would be used to discredit his testimony if he says something different.
“It’s the impeachable offense of obstruction. It’s probably not the criminal version of that act.”
“There’s definitely a case to be made for obstruction,” said Barak Cohen, a former federal prosecutor who now does white-collar defense work at the Perkins Coie law firm. “But on the other hand you have to realize that – as with any other sort of criminal law – intent is key, and intent here can be difficult to prove.”
The laws governing obstruction of justice require prosecutors to show a person “corruptly” tried to influence a probe – meaning investigators have to find some evidence of what a person was thinking when taking a particular action.
In this case, analysts said, that would mean analyzing the specific details of Trump and Comey’s conversation, assessing what else was happening at the time and possibly talking to Trump associates who had talked with the president about what he wanted to do.
“It depends on what he said and how he said it,” said Edward B. MacMahon Jr., another criminal defense lawyer. “I call all the time and ask prosecutors to stop investigations. It just depends on how it’s done.”
MacMahon noted there are circumstances – such as the CIA worrying about disclosure of classified information – in which one component of the executive branch discourages prosecutors from pursuing a case.
“If the reason you wanted it stopped was because it was going to lead to the prosecution of one of your friends, that would be one thing,” he said. “If you wanted it stopped because you didn’t want to disclose national security information, that’s something provided by statute.”
On the other hand, a criminal defense attorney is not the President of the United States, who has the legal authority to fire the lead investigator – and later did – after Comey rejected the God-King’s demand for a personal loyalty oath. That distinction may not matter in a hypothetical criminal prosecution, but this won’t be a criminal prosecution, as Bloomberg’s Noah Feldman explains:
If President Donald Trump asked FBI Director James Comey to stop investigating National Security Adviser Mike Flynn and his ties to Russia, that’s obstruction of justice. But let’s be clear: It’s the impeachable offense of obstruction. It’s probably not the criminal version of that act. With the evidence now available, it’s extremely unlikely that an ordinary prosecutor could convict Trump.
This is an outstanding example of a crucial distinction that Americans badly need to keep in mind. High crimes and misdemeanors, to use the Constitution’s phrase, aren’t the same as ordinary crimes. What makes them “high” is their political character. High crimes and misdemeanors are corruption, abuse of power, and undermining the rule of law and democracy. They don’t have to satisfy all the technical aspects of an ordinary crime. And this act of Trump’s, as described in a memo written by Comey first reported Tuesday by the New York Times, probably doesn’t.
The critical point is that impeachment for obstruction of justice is ultimately not just a legal question; it’s also a political question, albeit a political question highly inflected by the law and often discussed in the language of the law. The boundaries of the impeachable offense are not coextensive with the boundaries of the criminal law. There are things that are not criminal that are certainly impeachable, and there are crimes that are generally regarded as too trivial to trigger the Constitution’s standard in Article II § 4 of “Treason, Bribery, and other high Crimes and Misdemeanors.” The great constitutional scholar Charles Black, in an excellent volume entitled, Impeachment: A Handbook written during the Watergate era, describes this point in vivid detail.
So the real question boils down to this: Does the pattern of conduct that is emerging, in the view of a majority of the House of Representatives and a two-thirds majority of the Senate, constitute an obstruction of justice of a type that is grounds for impeachment and removal?
In other words, will House and Senate Republicans’ care for the rule of law override their thirst for high-income tax cuts?
“When you find yourself in the red zone on a decade’s worth of political goals, it takes a lot of lost yardage to force you to punt.”
By this point it’s almost a routine. Major media outlet breaks allegation of administration malfeasance. White House spokesman denies and dissembles. Feeding frenzy ensues. The next morning the president himself weighs in defiantly via Twitter, undercutting his staff and creating a lingering Rorschach test. Lather, rinse and repeat.
For a political press corps still catching its breath from last week’s unceremonious sacking of FBI Director James Comey, the revelation that President Trump may have shared sensitive information with Russian leaders was a true bombshell. The strong implication was that the president’s loose talk, however legal, had likely compromised sources and exposed a key foreign intelligence partner—later revealed to be Israel. And with Trump’s subsequent tweets effectively confirming the story (if not its grave implications,) a tipping point seemed inevitable. It all came before the New York Times reported another damaging revelation—that the president had asked Comey to shelve the Bureau’s investigation of Michael Flynn, his disgraced national security adviser.
But for his fans, it was all just further proof of the media’s obsession with Trump and its unyielding attempts to overturn the result of the 2016 election. The upside of convincing your supporters that the media will say anything to take you down is total inoculation against just about any allegation imaginable. And the president’s apparent anti-fragility means that each successive episode digs his boosters in further, validating the “fake news” narrative and eroding whatever remaining standing legacy institutions may still have. In fact, in the more imaginative quarters of the online right, this was just an attempt to distract from the “real story,” Seth Rich and WikiLeaks.
If you missed it, the Seth Rich story collapsed within hours but will forever remain part of the Clinton Body Count myth that lives in wingnut fever swamps.
You might argue that since Trump’s core supporters make up a mere third of the country that they are receiving undue attention. But this electoral rump is distributed overwhelmingly among the states and districts that send Republicans to Congress. For the vast majority of these members, the GOP primary is tantamount to the general election; the rest are tied to the broader ebb of the midterm tide in either direction. Which means, for better or worse, that the permission structure to break from Trump in any meaningful way is tied to his standing in the polls.
And there lies the rub. It literally doesn’t matter what two-thirds of Americans believe if the other third determine whether House Republicans keep their jobs. Oh sure, a relative handful of Republicans criticized the God-King’s “grab ’em by the pussy” comment, but that was before the election. Donovan concludes:
And yet the stakes on the trail were different. Back then you only had to grit your teeth through the last few months of the election, hold on tight and hope for the best. Flash forward and Republicans actually hold all the levers of power. If it was hard to cross the party’s underdog nominee, the thought of breaking with the president of the United States with three and a half years left on the clock is exponentially more daunting. Moreover, the current trifecta may be a once-a-generation legislative opportunity, suggesting a heightened tolerance for Trump’s foibles. When you find yourself in the red zone on a decade’s worth of political goals, it takes a lot of lost yardage to force you to punt.
Republicans desperately have wanted this to be a mutually beneficial relationship. They have a big policy agenda they want to see turned into law. They want to move on health care and taxes, government regulations and budget priorities. They waited through the last years of the previous administration for the opportunity to hold all the levers of power. Now that they have the power, they want to do as much as they can as quickly as they can to undo what President Barack Obama did and to advance a series of long-sought conservative policies.
Up to now, the calculus has been easy, if somewhat strained. To pursue a course of confrontation or conflict with the president – whether over Trump’s evidence-free claims that Obama ordered wiretapping of Trump Tower or of unprecedented electoral fraud – was, in the estimation of many Republicans, counterproductive.
On big matters, such as the report about Trump sharing intelligence with the Russians that was provided by a key ally, Republicans have reacted with shock but not condemnation. They have hoped to create some distance while avoiding building barriers with a volatile president who came to office largely independent of the party he claims as his own.
Calls for a special prosecutor or an independent investigation will intensify, though many Republicans will continue to resist, at least until their own political standing is in real danger. But the double revelations of the past two days show that events are forcing a change in everyone’s calculations.
As the controversies grow worse, so, too, will the tensions increase between the desire of congressional Republicans and the president to maintain a positive relationship and the responsibility of one branch of government to provide a check against another when that becomes necessary.
The deeper problem is that if House and Senate Republicans decide their policy agenda matters more than the God-King’s corruption and abuses of power, their inaction will create a new normal. Anything the God-King gets away with will be accepted as precedent … for Republican presidents. (Democratic presidents, of course, would still be held to the strictest imaginable letter of the law, because “the Constitution!”)
But frankly, I don’t think more than a handful of House or Senate Republicans give a damn about that. Until and unless they face political blowback – their jobs at risk – they’ll stick with their Faustian bargain. So although a whole lot more people are talking about impeachment this morning … I’d still take the “won’t happen” side of that bet.
Photo Credit: CNN
Good day and good nuts