Published by The Lawfare Institute
in Cooperation With
A few weeks ago, I gave an interview to the PBS NewsHour in which I was asked for the basis of my earlier claim that former FBI Director James Comey regarded President Trump and his coterie as dishonorable. I responded: “It was written on every line in his face. It was evident in the disapproving tone he took when he described them.”
It is a clarifying moment whenever an honorable person speaks plainly in public about a person he or she evidently regards as dishonorable on a matter of public moment. And today, a nation not normally riveted by congressional hearings got a chance to see what I was talking about. In three hours of testimony characterized by well-controlled but palpable anger, Comey attacked what he described as “lies” about the FBI and “defam[ation]” about himself; he accused the President of the United States of implicitly directing him to drop a major criminal investigation of a former senior official; he described a pattern of disrespect for the independence of the law enforcement function of the FBI; he alleged that the President made repeated misstatements of fact in his public accounts of their interactions; and he stated flatly that he believed that the President had fired him because of something related to the Russia investigation—an investigation that directly involves the President’s business, his campaign, his subordinates in the White House, and his family.
Throughout it all, the sense that he had spent four months dealing with people who were not honorable was, once again, written on every line of his face and evident in the tone he took when describing the President.
Here’s the basic problem the country now faces: If you believe that Comey—whatever his faults and whatever his errors may be—is an honorable and decent human being, what do these three hours of testimony convey about the group of people in charge of what the Constitution quaintly calls “the Executive Power” of the country in which we live? And how should we understand the man at the other end of the interactions Comey describes—a man who, under the spare words of Article II of that document, wields not just some of that executive power, but all of it? Remember that Comey was not just speaking publicly. He was speaking under oath. Remember also that he was speaking about matters in which he was a first-hand participant. Remember also that the only person who can meaningfully contest his allegations is Donald Trump.
In the days to come, as I noted yesterday, we’re going to see a full-court press against Comey; indeed it is already well under way. We’re going to see accusations of leaking. We’re going to see accusations that he violated confidences. Marc Kasowitz, President Trump’s lawyer in the Russia matter, has already declared that Comey “admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President”—as though the President has a reasonable expectation that he can fire someone and lie about the reasons and expect that person’s confidence in the exercise. We’re going to see accusations that Comey should have done more in real time if he thought the President’s conduct so egregious. We’re going to see disputes over facts. The Department of Justice, for example, released a statement today in response to Comey’s testimony that Attorney General Jeff Sessions had failed to respond verbally when Comey told him that he could not allow the FBI Director to be left alone with the President. The statement declares, “The Attorney General was not silent; he responded to [Comey’s] comment by saying that the FBI and Department of Justice needed to be careful about following appropriate policies regarding contacts with the White House.”
We’re also going to see a resolute refusal among certain Republicans to face the problem at hand. This refusal will take the form of legalisms: does the presidential conduct described amount in a technical sense to an obstruction of justice as defined by the specific elements of offenses in Title 18 of the United States Code?
It will also take the form of defining down the mental and moral requirements of the Presidency. People will hide behind the notion that obvious abuses of the discretionary power of the presidency—the power to fire for wholly inappropriate and self-serving reasons, the power to make investigative inquiries of matters that touch one’s own interests—are okay because they happen to be within the president’s Article II authorities. Others will hide behind the notion that the President did these things not out of venality or menace or corruption but because he’s some kind of newbie who just doesn’t know how to behave. House Speaker Paul Ryan made this very argument in response to Comey’s testimony today: Trump “probably wasn’t steeped in the long-running protocols that establish the relationships between DOJ, FBI and White House. He’s just new to this.”
Yet at the end of the day, these responses don’t remotely address the problem we face as as a society. Talking about Comey and his choices won’t change the fundamental problem, which is about the Trump presidency, not about the former FBI director. And infantilizing the President won’t help either, because the office is no place for infants.
At the end of the day, the problem we face is stark. It is not okay to have a president who—as Jack Goldsmith put it last night—”does not remotely understand his role, status, and duties as President and Chief Executive” and for whom “this failure infects or undermines just about everything he does.” It is not okay to have a President who has so little regard for his oath of office that he cannot appreciate his deficiencies, has no desire to remedy them, and is thus prone consistently to behave in fashions repugnant to the very nature of the presidency. Comey said in his testimony today that he began taking notes immediately after meeting privately with Trump for the first time because of the “nature of the person” he was speaking to. It is not okay to have a president whose FBI director so mistrusts his “nature” on first meeting him that he feels compelled immediately to begin writing memos to file to have a permanent record of his interactions with the man.
In the coming weeks, we’re going to see the question at hand—what to do about the fact that the presidency is warped and malfunctioning in the hands of Donald Trump—filtered through a number of different lenses. There’s the political lens, of course, and that is a lens about which I have limited confidence in my own analytical prowess. Trump’s popularity is declining right now, at an all-time low of 38.2 percent according to FiveThirtyEight’s weighted polling average. This sounds really bad, but it’s actually consistent with Bill Clinton’s polling levels at the same time in his presidency—and Clinton went on to comfortable reelection.
It’s safe to say that the evaluation of the basic problem at hand on the part of politicians will be different if Trump’s poll numbers show resilience than if they do not. Many Republican senators are hedging right now. Faced with Comey, they expressed gratitude for his service and assiduously avoided criticizing him, but they also stopping well short of any expression of outrage at the presidential conduct he described. Some were trying to clarify that the conduct, however troubling, was not criminal. Some were being more aggressive than that, actively seeking to exculpate the President from any suggestion of wrongdoing, even while being solicitous of Comey.
Consider, for example, the following exchange between Comey and Senator James Risch of Idaho:
SENATOR RISCH: There’s 28 words there that are in quotes, and it says, quote, “I hope” — this is the president speaking — “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”
Now those are his exact words, is that correct?
RISCH: And you wrote them here, and you put them in quotes?
RISCH: Thank you for that. He did not direct you to let it go.
COMEY: Not in his words, no.
RISCH: He did not order you to let it go.
COMEY: Again, those words are not an order.
RISCH: He said, “I hope.” Now, like me, you probably did hundreds of cases, maybe thousands of cases charging people with criminal offenses. And, of course, you have knowledge of the thousands of cases out there that — where people have been charged.
Do you know of any case where a person has been charged for obstruction of justice or, for that matter, any other criminal offense, where this — they said, or thought, they hoped for an outcome?
COMEY: I don’t know well enough to answer. And the reason I keep saying “his words” is I took it as a direction.
COMEY: I mean, this is the president of the United States, with me alone, saying, “I hope” this. I took it as, this is what he wants me to do.
COMEY: Now I — I didn’t obey that, but that’s the way I took it.
RISCH: You — you may have taken it as a direction, but that’s not what he said.
COMEY: Correct. I — that’s why...
RISCH: He said — he said, “I hope.”
COMEY: Those are exact words, correct.
RISCH: OK, do you — you don’t know of anyone that’s ever been charged for hoping something. Is that a fair statement?
COMEY: I don’t, as I sit here.
RISCH: Yeah. Thank you.
My guess is that this hedging, which is already diminishing, will prove heavily poll- and atmosphere-dependent. The old honorable-fight rule that you don’t kick a man when he’s down has never applied to politicians, who tend to observe the opposite rule: you only kick a man when he’s down. Many Republicans won’t start kicking the president unless and until they know he’s down, but once he is, they will kick. The question is what level of political free-fall counts as down for their purposes and whether or when we will ever reach it.
There’s also a legal lens, which has multiple distinct dimensions.
The first of these is whether any of the underlying allegations at issue in the Russia probe have merit, and specifically, whether they have merit in a fashion that implicates President Trump. The good news for the President is that there’s actually more reason today than two days ago to believe that the answer to this question may be negative—at least for now. Yesterday, I read Comey’s prepared remarks as consistent only in a very literal sense with the President’s contention that Comey had told him three times that he was not under investigation. Jack Goldsmith, in his post last night, disagreed, arguing that Trump’s understanding of Comey’s words, as Comey reports them, was a natural one. After listening to Comey’s oral testimony today, I agree with Jack.
Moreover, Comey also testified that the President personally was not subject to a counterintelligence investigation when Comey left office, and that there was no other (that is to say criminal) investigation focused on him personally either—though whether that is still true is unclear. Indeed, either of those facts could change or may have already changed; the President may well already be the subject of an obstruction investigation, for example, because of his interactions with Comey, and the Russia matters may have progressed. But it’s certainly reasonable to assume—if only tentatively and if only as of May 9—that the underlying facts of the Russia investigation, whatever they may be, chiefly involve others.
The second aspect of the legal lens is the question of any ancillary matters, some of them criminal, that have spun off of the counterintelligence probes. These investigations also appear, at least for now, not to touch Trump personally, but they do involve people close to him. And in at least in the case of Gen. Michael Flynn, Trump has embroiled himself in impropriety in his efforts at damage control with respect to the investigation. If the Mueller investigation were to eventually bring charges in a matter that the President has specifically sought to squelch, the fact that the charges did not directly involve the President himself might not mitigate their impact upon him all that much.
Another aspect of the legal lens is the obstruction question. Whether any acts the President took constitute an obstruction of justice either on their own or in combination with one another poses a dense set of legal questions that may depend on facts we don’t yet know. A responsible prosecutor would probably not evaluate the matter in any final way without interviewing the President; obstruction, after all, is a specific intent crime that has a mens rea requirement. Robert Mueller is a first-rate prosecutor and a first-rate investigator. I think that means two things. One is that flat declarations that what the President did constitutes obstruction are almost certainly getting out in front of where the investigation likely is at this stage. The flip side is that flat declarations that the President did not obstruct justice almost certainly are too. The facts here are very ugly, particularly in combination with one another. Mueller will, I expect, examine this question carefully.
In particular, Comey’s testimony today that he took the President’s “hope” about Flynn as a directive raises a serious question: What does Trump contend happened? Kasowitz’s statement today claimed that “the President never sought to impede the investigation into attempted Russian interference in the 2016 election.” He stated that “the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that Mr. Comey ‘let Flynn go.’” Kasowitz also stated: “The President also never told Mr. Comey, ‘I need loyalty, I expect loyalty.’” To state the obvious, these points are in direct conflict with Comey’s testimony today. When Trump eventually answers questions from the FBI and from prosecutors, who will they believe and with what level of certainty? What corroborating material will they have?
Finally, there’s the quasi-legal lens of presidential fitness, which is by far the most important one, in my opinion. It incorporates elements of the more purely legal lens, and elements of the political lens as well. The concept of “high crimes and misdemeanors” is not legally meaningless, but it is legally malleable based on shifting political power balances. The current situation is an acute expression of that reality. I have little doubt, to put the matter bluntly, that the factual record established so far would, with a Democratic-controlled House of Representatives, likely result in the impeachment of the President. It is also relatively clear to me that, absent more and with a Republican-controlled House of Representatives, it will very probably not result in an impeachment.
The greatest Onion news video ever made parodies the debate over interrogation in the Bush administration. It depicts a panel discussion of whether housing detainees in a labyrinth with a violent minotaur constitutes torture. At one point, the spoof former Bush administration official delivers the immortal line: “Even if the Minotaur did act inappropriately, and I’m not saying it did, the United States cannot be held responsible for its actions, because it is a beastly minotaur and no chains can bind it.”
This is the Trump presidency. There is no evidence that any chains can bind this president: not lawyers, not norms, not procedures, not repeated screw-ups of the sort that educate other leaders, and certainly not the mere expectations of decent public servants. But the problem is that the United States is responsible for his actions—and we are paying daily the price for them, particularly in our international relations but also in our domestic governance. It simply will not do any more for politicians to shield their eyes and say the equivalent of, “even if Trump did act inappropriately, and I’m not saying he did, it’s not my problem because he’s a beastly minotaur and no chains can bind him.”
One way or another, we have to face the fact that we have a president about whom the FBI director, after meeting him once, began writing memos to file, because he did not trust him to tell the truth about their interactions or to respect the functioning of law enforcement—and that this seems, given the “nature of the person,” an entirely prudent course of conduct.