Thursday, June 8, 2017

Now Comes the Pushback

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.


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.


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.


[Trump attorney] 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?

  Ben Wittes, Lawfare Blog
I doubt very much that tRump had the presence of mind to document anything. He flies by the very enormous seat of his pants. I doubt he had any tapes made, either. And if he did, he'll be erasing them.
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.


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.


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.

...but hey, do what you will anyway.

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