James Comey’s testimony before the Senate Intelligence Committee casts a different light on several questions I’ve considered here recently, to wit: How does “executive privilege” work? How is the Russia investigation like and unlike Watergate? And is this really worse?
Some thoughts on each, below.
Where is the “smoking gun”?
After President Trump fired Comey as FBI director, I wrote about what Watergate can teach us about what’s been happening in the Trump White House. Both involve the president seeking to manipulate an FBI investigation. But President Nixon’s efforts then were at once less direct and more effective. Comey’s testimony confirms that Trump made personal efforts to interfere — pending arguments about what the meaning of “hope” is — and that those efforts backfired.
But the week’s other allegations — that the president asked both the Director of National Intelligence and the head of the NSA to get Comey to stop the FBI investigation — are more reminiscent of the Nixon White House. In 1972, Nixon approved efforts to pressure the CIA to warn the FBI to stay away from the Cuban burglars involved in the Watergate burglary. That had a veneer of credibility, given the then-fresh and unpleasant memories of how CIA had stumbled in Cuba in the 1960s. But in 2017, Trump faced a more difficult task in trying to divide and conquer, given that the intelligence agencies were firmly unified on the fact of Russian meddling in the 2016 election. “There is no fuzz on that,” Comey testified on Thursday. “It is a high confidence judgment of the entire intelligence community.”
Can a president retroactively assert executive privilege?
The president’s personal lawyer, Marc Kasowitz, gave it a try after the hearing ended. But it won’t fly.
Kasowitz released a statement charging Comey with “selective and illegal leaks of classified information and privileged communications.” Those are four different things. Comey’s leak may have been selective, but it was not illegal. Its contents were not classified — something Comey seems to have carefully ensured. And while its contents might have been privileged under different circumstances, as I noted earlier this week, the point of executive privilege is to prevent another branch of government from compelling the disclosure of information. Comey released his memos voluntarily.
For that, he could be fired — if that ship had not already sailed. But, in fact, the letter the president sent to Comey firing him itself undermined the Kasowitz argument. After all, it made a key part of the conversations in question public.
So is this really worse than Watergate?
Finally, despite continuing references to Watergate — former Director of National Intelligence James Clapper even said this week that “Watergate pales, really, in my view, compared to what we’re confronting now” — it is still worth stressing the full scope of that earlier scandal.
As Jonathan Bernstein notes, “Watergate was as big as it was, with impeachment and conviction absolutely justified, because of the overwhelming range of criminal and unconstitutional actions Nixon and his men had committed.” Along those lines it’s worth reading reporters Bob Woodward and Carl Bernstein’s 2012 summary of what had been learned in the 40 years since the break-in. They note “Nixon’s five wars”: against the anti-war movement, against the press, against the Democratic party, against the rule of law, and later, against history.
Some of those are certainly on display now.
As Benjamin Wittes stresses on the Lawfare blog, this affair unmasks a potential threat to widely held norms against politicizing law enforcement. “A rule of law society … requires that law enforcement not be simply an arm of political power,” Wittes writes. As Comey himself testified, “the nature of the FBI and the nature of its work requires that it not be the subject of political consideration.”
Of course, in the bigger picture, political considerations matter quite a bit. Comey didn’t present a watertight legal case against Trump. Further exploration on that front will come from special counsel Robert Mueller — and that may prove exculpatory.
But when it comes to the key questions at issue when Congress investigates a president, as Keith Whittington wrote recently on this site, “concerns that are critical in criminal law” — for instance, the statutory definition of obstruction of justice – “don’t apply here.… context is everything.”
And given that the president is a person, albeit within an institution, part of that context must go to character. Comey took notes on his conversations with Trump, he said, because of his assessment of “the nature of the person: I was honestly concerned that he might lie about the nature of our meeting.” In response — and in an unwelcome echo of President Nixon’s proclamation that “I am not a crook” — the deputy press secretary was forced to declare that “the president is not a liar.”
Who is right? What’s next? As Comey put it: “Lordy, I hope there are tapes.”