Ignore all the extraneous, intentionally distracting noise about illegal leaks and Obama-era foibles. James B. Comey’s account of his dealings with President Trump was devastating, both legally and politically. And as congressional investigators and, more ominously, special counsel Robert S. Mueller III proceed, the facts may become far worse for the president.
To recap: According to Comey’s sworn testimony before the Senate Intelligence Committee, buttressed by yet-to-be-seen contemporaneous memos, Trump invited him to an unusual one-on-one dinner at which the president told Comey, “I need loyalty. I expect loyalty.”
The day before, then-acting attorney general Sally Yates first alerted White House Counsel Donald McGahn that then-national security adviser Michael Flynn had lied about his transition contacts with Russian Ambassador Sergey Kislyak and was vulnerable to being blackmailed by the Russians. White House press secretary Sean Spicer has said McGahn “informed the president right away” about Yates’s warning.
So Trump’s dinner with Comey, and his reopening of what Comey had thought was the settled question of whether the FBI director would keep his job, did not take place in a vacuum. This was no casual get-to-know-you social occasion. It occurred just as Trump was learning that Flynn was in enormous jeopardy.
The next month, Comey said, Trump insisted on clearing the Oval Office of witnesses for another session alone with him, at which the president expressed his desire that a politically damaging case against his just-fired national security adviser be made to go away. That did not happen, and Trump summarily fired Comey, asserting that he was accepting the advice of underlings “that you are not able to effectively lead the bureau.”
Almost immediately, however, the president acknowledged that this recommendation was mere pretext; in fact, Trump said, he was spurred by Comey’s handling of “this Russia thing.”
Does this rise to the level of obstruction of justice? Perhaps, and the Comey testimony brings Trump significantly closer to that point, including Comey’s clarification that he understood Trump’s expression of “hope” as a clear direction to drop the case. If this request was so benign, why did Trump seemingly feel uncomfortable making it in the presence of witnesses?
Still, considering whether a prosecutor would be able to prove obstruction beyond a reasonable doubt is a question that is both premature and slightly off-point.
It’s premature because Mueller is at the beginning of the beginning of looking at Trump’s conduct. Even on the question of obstruction alone, he would want to question multiple additional witnesses about Trump’s dealings with Comey and the Flynn case/larger Russia inquiry, including Chief of Staff Reince Priebus, senior adviser/son-in-law Jared Kushner, McGahn, Attorney General Jeff Sessions and Deputy Attorney General Rod J. Rosenstein. Director of National Intelligence Daniel Coats and National Security Agency Director Michael S. Rogers may have stiff-armed senators’ questions about Trump’s reported efforts to have them intervene on the Russia matter; they won’t be able to easily evade Mueller.
It’s slightly off-point in that a criminal prosecution of Trump while he is president is unlikely and, at least according to the Justice Department’s long-standing assessment, constitutionally impermissible. The more likely, and more appropriate, remedy would be impeachment, in which case lawmakers would not be bound by the strict elements of the obstruction crime or the high bar of criminal proof.
So let Mueller and Congress continue their essential work. In the meantime, don’t be fooled or diverted by the attacks on Comey and others. “Despite so many false statements and lies, total and complete vindication . . . and WOW, Comey is a leaker!” Trump tweeted Friday. Later, he denied asking Comey for loyalty or pressing him to drop the Flynn case.
In a swearing contest between Comey and Trump, Comey wins, hands down, against a man whose misstatements keep the fact-checkers working overtime. Every lawyer on the planet would want Comey testifying for their side over Trump. To disbelieve Comey is to imagine that he wrote a fictitious account of his interactions with the president before being fired but that his fabrication didn’t include a direct order from Trump.
And yes, Comey orchestrated the leak of his memo. If that makes you think less of him, fine, but keep a few things in mind: Comey was by then a private citizen, reporting on an unclassified conversation with the president. In any event, branding Comey a “leaker” doesn’t undermine the significance of the underlying information. Deep Throat was a leaker, too.
Trump is president. It’s his conduct that is at issue. And vindication, if it is to come, feels awfully far off.
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